9911796707
TMI Blog2009 (11) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... uter limit being 90 days. The said order calls for no interference. - CRL.A. 460/2008 & Crl.M.A.6384/2008 - - - Dated:- 19-11-2009 - MS. INDERMEET KAUR J. Appellant: Mr. Rohit P. Ranjan, Adv. Respondent: Ms. Rajdipa Behura, Adv. INDERMEET KAUR, J. 1. Present appeal has been filed under Section 35 of the Foreign Exchange Management Act 1999 (hereinafter referred to as the FEMA). It has impugned the order of the Appellate Tribunal for Foreign Exchange dated 26.3.2008. 2. The Adjudicating Authority i.e. the office of the Deputy Director on 30.3.2005 had held the petitioner M.K. Suri, proprietor of M/s Amit Export guilty of contravention of the provisions of Section 18(2) and 18(3) of the Foreign Exchange Regulation Act 1973 (hereinafter referred to as the FERA). A penalty of Rs.2,50,000/- had been imposed upon him. While passing the said order sub-clause (iii) of page 1 read as follows:- (iii) An appeal against this order shall lie with the Appellate Tribunal of Foreign Exchange, Ministry of Law, Justice Company Affairs, Government of India, 4th floor, B Wing, Janpath (Indian Oil) Bhawan, Janpath, New Delhi-110001, after depositing the amount of penalty im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der challenge i.e. the order dated 30.3.2005, on which date the FERA stood repealed has to be with reference to the FEMA alone. There is no scope for the application of the provisions of the FERA as it has been repealed for all purposes; this is also clear from the order of the Adjudicating Authority dated 30.3.2005 which had directed the petitioner to prefer the appeal before the Appellate Tribunal with reference to Section 19 and Section 49 (5) of the FEMA. It is submitted that under the provisions of the FEMA, there is a stipulation that the Appellate Tribunal will not hear an appeal against the Adjudicating Order unless a pre-deposit of an amount of Rs.10,000/- has been made. It is stated that because of financial constraint the petitioner could not immediately comply with that order and it had taken him sometime to gather this amount of Rs.10,000/- which now stand deposited but this was the reason why there was a delay in preferring the appeal before the Appellate Tribunal. It is stated that under Section 19(2) of the FEMA the period for filing an appeal against the order of the Adjudicating Authority is 45 days but the Appellate Tribunal may entertain an appeal after the expi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicating Authority; this appeal was admittedly filed after a delay of 118 days which period cannot be extended in any manner. 8. Arguments have been heard and record has been perused. 9. Section 49 of the FEMA reads as follows:- Repeal and saving 49. (1) The Foreign Exchange Regulation Act, 1973 is hereby repealed and the Appellate Board constituted under sub-section (1) of section 52 of the said Act (hereinafter referred to as the repealed Act) shall stand dissolved. (2) On 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 51 of the repealed Act after the expiry of a period of two years from the date of the commencement of this Act. This Sub-section clearly speaks of the taking of the cognizance of the offence under the repealed Act which can at best be within the sun set period of two years from the date of the commencement of the FEMA i.e. cognizance can be taken of an offence under the FERA only up to 31.5.2002 and not later. This sub-clause is inapplicable; and admittedly so; the said sub-clause restricts the application of the FERA only on the taking of the cognizance of an offence under the repealed Act. In the instant case the show cause notice/memorandum No.T-4/43-DZ/2000/DD(VS) is dated 30.6.2000; on this date it was the FERA which was in operation; cognizance already having been taken the applicability of the Section 49 (3) of the FEMA is excluded. This argument has also not been pressed. Section 49 (5)(b) provides that an appeal pending before the Appellate Board shall be transferred to the Appellate Tribunal; the Appellate Board was constituted under the FERA; the appeal pending before the Appellate Board i.e. before the FERA in terms of this Sub-clause would be transferred and dispose ..... X X X X Extracts X X X X X X X X Extracts X X X X
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