2014 (4) TMI 466 - HC - FEMA

Condonation of delay - decision to file appeal was taken at various levels which consumed valuable time - Held that - Apparently, the present appeal has been filed after an inordinate delay of 775 days. Section 35 of FEMA permits the appeal to be filed within 60 days from the date of communication of the decision or order of the Appellate Tribunal on any question of law arising out of such order. The proviso authorises High Courts to extend the appeal to be filed within next 60 days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal. Since the impugned order was passed by the Appellate Tribunal constituted under FEMA, in my view, the provisions of Section 35 of the FEMA are attracted and the period of limitation for filing the appeal cannot be extended beyond 120 days - Condonation denied.

Summary

Issues: Delay in filing appeal under Section 54 of FERA.

Analysis:
1. The appellant filed Crl.A.1503/2011 under Section 54 of FERA against the Appellate Tribunal's order dated 21.08.2009, which quashed the adjudication order dated 28.10.2003. An application, CRL.M.A.18825/2011, was submitted to condone the 775-day delay in filing the appeal.

2. The appellant contended that the delay was unintentional and resulted from the decision-making process within the Enforcement Directorate. However, the High Court noted that the appeal was filed significantly beyond the 60-day limitation period prescribed by Section 35 of FEMA, which allows a 60-day extension under sufficient cause. The Court emphasized that the limitation period for filing the appeal cannot exceed 120 days.

3. Referring to the Supreme Court's decision in 'Thirumalai Chemicals Limited vs. Union of India & ors.', the Court highlighted the distinction between substantive and procedural law, emphasizing that the right of appeal is substantive, while the limitation period is procedural. The Court underscored that FEMA's provisions govern appeals filed after its enactment, even if the cause of action arose under FERA.

4. The Court clarified that the dissolution of the appellate Board under FERA upon FEMA's enactment meant that appeals against FERA orders had to be filed under FEMA provisions. It further explained that FEMA's Section 19(2) governs the limitation period for appeals, allowing the Tribunal to condone delays without a ceiling if sufficient cause is shown.

5. Citing the Bombay High Court's decision in 'Union of India vs. Ashok J. Ramsinghani', the Court reiterated that appeals against FERA orders must be filed within FEMA's prescribed limitation period before the appellate authorities constituted under FEMA.

6. Ultimately, the Court dismissed the application for condonation of delay, emphasizing that the reasons provided by the appellant did not constitute sufficient cause. The Court highlighted previous judgments where delays in filing appeals were not condoned, emphasizing the importance of adhering to limitation periods and avoiding inaction or negligence in decision-making processes. Consequently, the appeal was dismissed in line with the decision on the delay application.