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TMI Blog2012 (7) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... h FEA 4 of 2003 and FEA 1 of 2004, could not agree with the views taken by another Division Bench of this Court Hon'ble Justice M.H.S. Ansari (as His Lordship then was) and Hon'ble Justice Soumita Pal in Their Lordships judgment dated 31st March, 2004, while deciding a number of matters involving identical point. The earlier Division Bench in the case of Union of India and Anr. -vs- M/s. SMP Exports Pvt. Ltd. and Ors. and other three matters, held that Court's power to condone delay against the judgment and order of the Appellate Tribunal is governed by the provision of section 35 read with proviso of FEMA, even if the appeal has been preferred in relation to contravention of any provision of FERA after repeal. From the records, it appears that in all the aforesaid three appeals, indisputably, the proceedings were initiated under the provisions of FERA and order of adjudication was also passed under the said Act. Even the appeals were also preferred thereafter during subsistence of FERA. During pendency of these appeals, FEMA came into operation on and from 1st June, 2000 on repealing of the FERA. Naturally, by virtue of clause (b) of Section 5 of Section 49 of the FEMA all those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther contention is that right of appeal conferred under Section 54 of FERA is a substantive right and that entitles a person to prefer appeal within the period limited and even beyond that subject to satisfaction of the Court that the appellant was prevented by sufficient cause in preferring appeal within the prescribed time limit. The right to get the delay condoned, is substantive one and the same otherwise occurs by virtue of provisions of Section 29(2) of Limitation Act, unless applicability thereof is excluded by express and clear intention by the language used in the legislation. He submits that Section 35 of FEMA has not excluded expressly applicability of the provision of Section 5 of the Limitation Act as mentioned in Section 29(2) of the Act and it would be clear from the expression used in sub-sections (3) and (4) read with subsection (5), clauses (b) and (c) and the proviso and sub-section (6) of Section 49 of FEMA. The legislature has never intended to deny the right of defence which accrued to the appellant under the FERA. Even sub-section (5) clause (c) and proviso of Section 49 of the FEMA indicates preservation of provision of condonation of delay of earlier Act in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt cannot condone delay under the aforesaid section beyond the period of sixty days. FEMA being a special Act and the language mentioned in Section 35 therein is such that the provisions of Sections 4 to 24 of the Limitation Act has been excluded. In support of his aforesaid submission, he has referred to the following decisions of the Supreme Court: 1. AIR 1991 SC 2156 (Vinod Gurudas Raikar -vs- National Company Ltd. And Ors., 2. (2001) 8 SCC 470 (Union of India -vs.- Popular Construction Company), 3. Unreported decision of Supreme Court in connection with Civil Appeal No. 1939 of 2009, arising out of SLP No. 14467 of 2007 (Commissioner of Customs and Central Excise -vs- M/s. Hongo India (P) Ltd. and Anr., 4. 2012 (275) E.L.T. 3 (S.C.) (Ketan V. Parekh -vs- Special Director, Directorate of Enforcement. Mr. Mukherjee then contends that Section 6 of the General Clauses Act is of no help in this case and it will be applicable in a situation where it is established that the repealing Act does not show any contrary intention to such application and this can only be ascertained from all the relevant provisions of the relevant Act. To support the aforesaid legal proposition, he ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A, under which an appeal has to be preferred is set out below: Section 35: "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 to him 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." From the language of the proviso, it is clear that the power of condonation of delay by the High Court is restricted to only sixty days and not beyond the same. The language is indicator to hold decisively that the provision of Section 5 of the Limitation Act being one of the sources of power of Court to condone delay for unlimited period, has been excluded by the special enactment. According to us, this special statute is a self-contained code as far as dispute resolution mechanism is concerned, and for the purpose of condonation of delay, the provision of Limitation Act, 1963 is not required to be referred nor relied on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to accept the contention of Mr. Banerjee, as rightly argued by Mr. Mukherjee, that the right to prefer appeal beyond the stipulated period, has been taken away by the FEMA by restricting the power of Court to condone delay only for the period of sixty days in contrast to the earlier power to condone delay for unlimited period. We find considerable force in the submission of Mr. Mukherjee that right of appeal has not been taken away by the FEMA, only right to get delay condoned for unlimited period is curtailed. We think right to appeal is one thing and right to apply for condonation of delay in preferring an appeal is another. Two things cannot be equated for reasons mentioned little later. We however accept Mr. Banerjee's contention that right to prefer appeal under the statute within the period of limitation is undoubtedly substantive right and such right cannot be taken away by amendment of the Act concerned or by separate enactment on the same subject and it is well established by the judicial pronouncement, as would be found from the old decisions of Supreme Court, referred to above viz. AIR 1953 SC 221, AIR 1967 SC 344 (Para 9). However, if the appeal is sought to be filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has no general and sweeping application. The applicability thereof is clearly conditional, that is apparent from the section itself, which is quoted hereunder: "Section 6: Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, ( emphasis supplied) the repeal shall not - (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment as repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 49 of FEMA is reproduced below : Section 49, sub-section (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." Therefore, the aforesaid sub-section is clearly hinting to reach conclusion that even the effect of FERA is not extendable under any circumstances for a period of more than two years from the date of commencement of this Act. These appeals were sought to be presented in this Court long after two years. Therefore, the provision of Section 49 sub-section (4) is also not helpful. In any event the said section does not mention about appeal. All the aforesaid provisions clearly indicate different intention of the legislature reflected in the special statute as mentioned in Section 6 of the General Clauses Act. The Supreme Court in the case of Gajraj Singh -vs- The State Transport Appellate Tribunal and Ors. reported in AIR 1997 SC 412, in paragraph 25 has observed regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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