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TMI Blog2009 (5) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation, it is apparent that the Appellate Authority failed to exercise the jurisdiction vested in it under section 19 of FEMA and to that extent the order becomes unsustainable. Accordingly, the case, is remanded back to the Appellate Authority to consider the plea of limitation in the light of section 19 of FEMA. In case the delay is condoned then to hear the matter afresh. - CRL. APPEAL NO. 305 OF 2007 - - - Dated:- 6-5-2009 - MOOL CHAND GARG, J. Siddharth Luthra, Ms. Jasmine, Damkewala, Ms. Manasi Gupta and Saurabh Seth for the Appellant. ORDER 1. The short point involved in this matter is that as to whether the impugned judgment and order of the Appellate Authority dated 9-3-2007 while dismissing the appeal only on the ground of limitation which justifies or requires any interference by this Court. Some list of dates are relevant for the purpose of deciding the matter. Date Event 1-6-2000 The FERA bill after receiving the assent of the President on 29-12-1999, came into force as FEMA, 1999 repealing FERA, 1973. 19-11-2001 The RBI addressed a letter to the Director, Enforcement Directorate, FERA/FEMA, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 5 per cent of the total amount of penalty within 30 days. 29-10-2005 The appellant filed an Additional Affidavit thereby placing on record the documentary proof, i.e., the bill of entries etc. pertaining to the USD 2,30,615 transaction dated 25-9-1998. 9-3-2007 The Appellant Tribunal without going into the merits of the case dismissed the appeal on the ground of delay of 50 days. 2. It is against the order dismissing the appeal, the present appeal has been filed which the appellant submits has been dismissed only on the ground of delay. 3. The appeal has been filed by the appellant on the following grounds : ( a )Under section 19(2) of the FEMA, 1999, the delay in filing of the appeal before the Appellate Tribunal was condonable. ( b )The Tribunal s order resulted in giving untrammelled power to the Department since the cognizance being under the new Act or the repealed Act would determine the fate of case by granting or curtailing the limitation. ( c )The appeal was filed under the FEMA, 1999, therefore, the limitation period as mentioned in the FEMA, 1999 would apply. ( d )The order-in-original itself specifically mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the following norms are fulfilled, then normally order of conversion of revision into appeal or appeal into revision should be passed : ( i )When revision is converted into second appeal, then before passing the order of conversion, it is to be considered whether substantial question of law arises in the said case, if no substantial question of law arises in the case, revision cannot be converted into second appeal. ( ii )Revision can be converted into appeal if same is filed within time and there is no impediment of limitation. Limitation must be construed from the date of filing of the revision petition or appeal. If the revision or appeal so filed was within limitation, for conversion into appeal or revision, it is to be examined that the appeal or revision, as the case may be, so filed, on the date of institution was within the limitation and if so, said permission can be granted. ( iii )There is no period of limitation for applying such conversion, but while exercising the powers of conversion, the Court would keep in mind whether appeal or revision, as the case may be, had been instituted within the period prescribed for such proceedings." 15. From points ( ii ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n committing the contravention, prefer an appeal to the Appellate Board : Provided that the Appellate Board may entertain any appeal after the expiry of the said period of forty-five days, but not after ninety days from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time : Provided further that where the Appellate Board is of opinion that the deposit to be made will cause undue hardship to the appellant, it may, in its own discretion, dispense with such a deposit either unconditionally or subject to such conditions as it may deem fit. (3) On receipt of an appeal under sub-section (2) the Appellate Board may, after making such further inquiry as it deems fit, confirm, modify or set aside the order appealed against and the decision of the Appellate Board shall, subject to the provisions of section 54, be final and if the sum deposited by way of penalty under sub-section (2) exceeds the amount directed to be paid by the Appellate Board, the excess amount shall be refunded. (4) The Appellate Board may, for the purpose of examining the legality, propriety or correctness of any order made by the Adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the dissolution of the said Appellate Board, the person appointed as Chairman of the Appellate Board and every other person appointed as Member and holding office as such immediately before such date shall vacate their respective offices and no such Chairman or other person shall be entitled to claim any compensation for the premature termination of the term of his office or of any contract of service. (3) Notwithstanding anything contained in any other law for the time being in force, no court shall take cognizance of an offence under the repealed Act and no Adjudicating Officer shall take notice of any contravention under section 51 of the repealed Act after the expiry of a period of two years from the date of the commencement of this Act. (4) Subject to the provisions of sub-section (3) all offences committed under the repealed Act shall continue to be governed by the provisions of the repealed Act as if that Act had not been repealed. (5) Notwithstanding such repeal, ( a )anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declarati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such person, the Appellate Tribunal may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the realisation of penalty. (2) Every appeal under sub-section (1) shall be filed within a period of forty-five days from the date on which a copy of the order made by the Adjudicating Authority or the Special Director (Appeals) is received by the aggrieved person or by the Central Government and it shall be in such form, verified in such manner and be accompanied by such fee as may be prescribed : Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause for not filing it within that period. (3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against. (4) The Appellate Tribunal shall send a copy of every order made by it to the parties to the appeal and to the concerned Adjudicating Authority or the Special Director (Appeals), as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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