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TMI Blog2011 (5) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant. Mr. V. Shridharan, Advocate i/b. PDS Legal for the respondent. JUDGMENT (PER J.P. DEVEDHAR, J.) 1) This Civil Application is filed by the applicant Assistant Director, Enforcement Directorate, Mumbai seeking condonation of 291 days delay in filing the appeal against the order dated 18/8/2009 passed by the Appellate Tribunal for Foreign Exchange in Appeal No.110/08. The Appellate Tribunal by its order dated 18/8/2009 has set aside the penalty of Rs.7 crores imposed by the Special Director, vide order in original dated 28/3/2008, passed under Section 50 of the Foreign Exchange Regulation Act, 1973 ( FERA for short) read with Section 13(1) of the Foreign Exchange Management Act, 1999 ( FEMA for short). 2) The condonation of delay is sought on the ground that there was sufficient cause for not filing the appeal in time and since the appeal is filed under Section 54 of the FERA read with Section 49(5)(c) of FEMA, the High Court is empowered to condone the delay for any period of time subject to showing sufficient cause. 3) In the present case, for the offence allegedly committed under FERA, proceedings were initiated against the respondent after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of by the Appellate Tribunal constituted under this Act; (c) every appeal from any decision or order of the Appellate Board under sub-section (3) or sub-section (4) of section 52 of the repealed Act shall, if not filed before the commencement of this Act, be filed before the High Court within a period of sixty days of such commencement: Provided that the High Court may entertain such appeal after the expiry of the said period of sixty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period. " 7) At this stage, we may also refer to Section 35 of FEMA ( to the extent relevant) which reads thus :- " 35. Appeal to High Court, Any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within sixty 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: Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days. " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined in the Central Excise Act, 1944, the Apex Court in the case of M/s. Singh Enterprises V/s. CCE reported in 221 ELT 163 (SC) held that where the statute bars appeal beyond sixty days, the Court cannot condone the delay and entertain the appeal filed beyond sixty days. In the present case, since the appeal is filed beyond 120 days, the High Court cannot condone the delay and consequently, the appeal would be time barred. 13) To overcome this difficulty, it is contended by the learned Additional Solicitor General ('ASG' for short) appearing on behalf of the applicant that the appeal is filed under Section 54 of the FERA read with Section 49(5)(c) of FEMA. 14) The learned ASG submits that under Section 6 of the General Clauses Act, 1897, when a Central Act is repealed and replaced by another Act, then the legal proceedings for enforcing a right accrued or acquired or liability incurred under the repealed Act remains unaffected and remain preserved as if the old Act continues to be operative unless the new Act manifests a contrary intention. He submitted that in order to see as to whether the rights and liabilities under the repealed law have been put to an end to by the ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FERA namely, the Appellate Board is expressly abolished. As a result, after commencement of FEMA, appeals against adjudication orders passed under FERA had to be filed before the appellate authorities under FEMA, namely Special Director (Appeals) / Appellate Tribunal, as the case may be. The legislature further provides under Section 49(5)(b) of FEMA that appeals pending before the Appellate Board on the date of commencement of FEMA shall be transferred to the Appellate Tribunal constituted under FEMA. Thus, on commencement of FEMA, appeal against the adjudication order passed under FERA would be maintainable before the appellate authorities constituted under FEMA within the period of limitation prescribed under FEMA. In other words, appeals against adjudication orders passed under FERA or FEMA after the commencement of FEMA, have to be filed before the appellate authorities constituted under FEMA within the period of limitation prescribed for filing appeals before the appellate authorities constituted under FEMA. 17) The argument of the learned ASG that the right of second appeal under Section 54 of FERA remains intact even after the commencement of FEMA is not acceptable beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, because, Section 49(5)(c) of FEMA refers to filing of an appeal before the High Court against an order or decision of the Appellate Board under Section 52 of FERA. In the present case, the appeal filed in this Court is not against the decision or order passed by the Appellate Board. Therefore, it cannot be said that the appeal has been filed before this Court under Section 49(5)(c) of FEMA and consequently there is no question of condoning the delay in filing the appeal as per the proviso to Section 49(5)(c) of FEMA. 20) Strong reliance was placed by the learned ASG on the decision of this Court in the case of Lalit D. Sheth V/s. Union of India reported in 2010 (153) E.L.T. 753 (Bom) in support of his contention that the appeal against the decision of the Appellate Tribunal can be treated to have been filed under Section 49(5)(c) of FEMA and consequently, this Court would have power to condone the delay in filing the appeal as per the proviso to Section 49(5)(c). As rightly contended by Mr. Sridharan, learned counsel for the respondent, though in para 11 of the aforesaid judgment, this Court has recorded that the appeal is obviously filed under Section 49(5)(c) of FEMA, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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