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2023 (4) TMI 1136 - HC - FEMAMaintainability of WP against Violation of the Foreign Exchange Management Act, 1999 - proceedings initiated u/s 6(3) of the Act, 1999 - The provision has been omitted - saving clause - Scope of alternative remedy - Petitioners challenge the impugned order, inter alia, on the ground that they were charged under Section 6(3)(b) of the Act, 1999 which was subsequently omitted from the Act, 1999, w.e.f. 15.10.2019 - whether present writ petition is not maintainable as the Petitioners have an efficacious and alternative remedy under Section 19 of the Act, 1999? - HELD THAT - Section 6 of the Act, 1897 is applicable to omission of a provision by the legislature. Section 6 of the Act, 1897 saves all the pending proceedings under a provision that was subsequently omitted. Now coming to the facts of the case, it is not in dispute that the proceedings for violations of Section 6(3)(b) of the Act, 1999 were initiated in the year 2017. When the proceedings were initiated against the Petitioners, Section 6(3) of the Act, 1999 was still in force. Therefore, by virtue of Section 6 of the Act, 1897 the proceedings against the Petitioners are saved and cannot be disturbed merely because Section 6(3) of the Act, 1999 was subsequently omitted. According to this Court, Respondent No. 1 was well within his jurisdiction to pass the impugned order dated 04.01.2023. As the Petitioner, has an effective alternative remedy in the form of an appeal under Section 19 of the Act, 1999, this Court, in light of the decision in Assistant Commissioner of State Tax (supra) holds that the present writ petition is not maintainable. Therefore, the present writ petition is liable to be dismissed. Writ petition is dismissed. However, the Petitioners are at liberty to raise all the contentions before the Appellate Tribunal.
Issues Involved:
1. Maintainability of the writ petition. 2. Jurisdiction of Respondent No. 1 to pass the impugned order under a subsequently omitted provision. Summary: Issue 1: Maintainability of the Writ Petition The primary issue was whether the writ petition challenging the order under Section 16 of the Foreign Exchange Management Act, 1999 (FEMA) was maintainable. The court noted that a writ petition should not be entertained if an efficacious alternative remedy is available. The court cited the Supreme Court's decision in *Assistant Commissioner of State Tax v. Commercial Steel Limited*, which held that a writ petition is maintainable in exceptional circumstances such as breach of fundamental rights, violation of the principles of natural justice, excess of jurisdiction, or a challenge to the constitutionality of any law. The court found that the Petitioners had an alternative remedy under Section 19 of FEMA, thus the writ petition was not maintainable. Issue 2: Jurisdiction of Respondent No. 1 The Petitioners argued that the impugned order was passed without jurisdiction under Section 6(3)(b) of FEMA, which was omitted from the Act effective 15.10.2019. They contended that pending proceedings under an omitted provision cease to exist and are not saved by Section 6 of the General Clauses Act, 1897. The court, however, disagreed, citing several Supreme Court decisions, including *Fibre Boards (P) Ltd. v. CIT* and *Shree Bhagwati Steel Rolling Mills v. CCE*, which held that Section 6 of the General Clauses Act applies to omissions as well as repeals. The court concluded that pending proceedings under an omitted provision are saved and can continue. Therefore, Respondent No. 1 had jurisdiction to pass the impugned order. Findings: The court held that Section 6 of the General Clauses Act, 1897 saves pending proceedings under a provision that is subsequently omitted. As the proceedings against the Petitioners were initiated when Section 6(3)(b) of FEMA was still in force, they were saved despite the subsequent omission of the provision. Consequently, the court found that Respondent No. 1 had jurisdiction to pass the impugned order. Conclusion: The writ petition was dismissed as not maintainable, and the Petitioners were directed to pursue their alternative remedy under Section 19 of FEMA. The court also closed any pending miscellaneous petitions in the writ petition.
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