2009 (11) TMI 679 - HC - FEMA

Whether the correctness and legality of the order of the Adjudicating Authority dated 30.3.2005 which had become the subject matter of an appeal before the Appellate Tribunal has to be examined under the provisions of the FERA or the FEMA? Held that - In the instant case the provisions of Section 52(2) read with the provisions of the FERA which is also a legislation dealing with economic offences, clearly stipulates that any person aggrieved by an order of the Adjudicating Authority may appeal to the Appellate Board within a period of 45 days; the Appellate Board may entertain the appeal after the expiry of 45 days but not beyond 90 days. This is the outer limit and a mandate. Application of Section 5 of the Limitation Act is excluded. Under Section 52 of the FERA, it is clear that the outer limit for filing an appeal is 90 days; beyond the period of 90 days the Court has no power to condone the delay. The Appellate Tribunal on 26.3.2005, had rightly dismissed the appeal on this ground by invoking Section 52 (2) of the FERA holding that the delay of 118 days could not be condoned; the outer limit being 90 days. The said order calls for no interference.

Summary

Issues Involved:
1. Applicability of FERA or FEMA in adjudicating the appeal.
2. Legality of the delay in filing the appeal.
3. Jurisdiction and powers of the Appellate Tribunal concerning the condonation of delay.

Issue-wise Analysis:

1. Applicability of FERA or FEMA in adjudicating the appeal:

The primary issue was whether the correctness and legality of the Adjudicating Authority's order dated 30.3.2005 should be examined under the provisions of the Foreign Exchange Regulation Act (FERA) or the Foreign Exchange Management Act (FEMA). The court noted that FEMA was enacted on 1.6.2000, repealing FERA. However, Section 49 of FEMA contains a saving clause, stating that any action taken under the repealed Act (FERA) shall continue to be governed by the provisions of the repealed Act as if it had not been repealed. The court concluded that the substantive provisions of FERA would apply to the proceedings initiated under FERA, even though the appeal was filed under FEMA.

2. Legality of the delay in filing the appeal:

The appellant filed the appeal with a delay of 118 days against the adjudication order received on 30.3.2005. The Appellate Tribunal dismissed the appeal on the ground of limitation, stating that the Tribunal is not allowed to condone a delay beyond 45 days as per the first proviso of Section 52(2) of FERA. The court upheld this reasoning, emphasizing that under Section 52 of FERA, the outer limit for filing an appeal is 90 days, and beyond this period, the court has no power to condone the delay. The court referenced the case of Singh Enterprises vs. Commissioner of Central Excise Jamshedpur & Ors., where it was held that special statutes like the Central Excise Act exclude the application of Section 5 of the Limitation Act, similarly applicable to FERA.

3. Jurisdiction and powers of the Appellate Tribunal concerning the condonation of delay:

The court examined whether the Appellate Tribunal could condone the delay in filing the appeal. It was argued that the delay occurred due to financial constraints in depositing the required pre-deposit amount of Rs.10,000/- as stipulated under FEMA. However, the court noted that the Appellate Tribunal is empowered to grant condonation up to 45 days beyond the initial 45-day period but not beyond 90 days. Since the appeal was filed after a delay of 118 days, the Tribunal correctly dismissed the appeal. The court emphasized that the legislative scheme under FERA clearly stipulates the outer limit for filing an appeal and excludes the application of Section 5 of the Limitation Act.

Conclusion:

The court held that the appeal was rightly dismissed by the Appellate Tribunal due to the inordinate delay in filing beyond the permissible 90 days. The substantive provisions of FERA were applicable, and the Tribunal's decision to dismiss the appeal for being time-barred was upheld. The appeal was dismissed, and the order of the Appellate Tribunal dated 26.3.2008 called for no interference.