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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 ..... on of any provision of FERA after repeal. - F.E.A. 2 of 2003 F.E.A. 4 of 2003 F.E.A. 1 of 2004 - - - Dated:- 20-6-2012 - Justice Pinaki Chandra Ghose, Justice Sengupta. Justice Biswanath Somadder, JJ. For Appellant : Mr. Sibdas Banerjee, Mr. S.B. Saraf. For Respondent: Mr. Anjan Kr. Mukherjee, Mr. B.P. Jana, Mr. Ashok Kr. Pandey, Mr. Nirmal Kr. Chowdhury. K. J. Sengupta, J.:- All the aforesaid three matters have been placed for hearing before this Bench only on the point, which is common in all these matters, whether the aforesaid appeals preferred to this Court under the Foreign Exchange Management Act, 1999 (hereinafter referred to as FEMA) against the judgment and order of the learned Appellate Tribunal, can be entertained for hearing condoning delay, taking recourse to the power of this Court under section 52(2) proviso of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as FERA). A Division Bench of this Court, while entertaining the applications for condonation of delay filed in connection with 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. Ansar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be exercised resorting to the provisions of Section 54 read with proviso of FERA. In other words, the Court can condone delay under the aforesaid provisions for unlimited days as opposed to the corresponding provision of Section 35 of FEMA. To amplify his argument, he contends that right of appeal accrues to the party when initial proceedings is initiated and this right is substantive one and it is settled position of law that appeal is continuation of the original proceedings. This substantive right cannot be taken away by subsequent enactment. He however, conceded, that in the event it is held that the right to apply for condonation of delay in preferring appeal is not substantive one, the same is a procedural right, certainly the present provisions of FEMA in connection with preferring appeal to this Court against the order of the Appellate Tribunal, would be applicable. He has referred to the following decisions of the Supreme Court in this context: AIR 1971 SC 1193, AIR 1953 SC 221, AIR 1967 SC 344 and AIR 1960 SC 980. His further contention is that right of appeal conferred under Section 54 of FERA is a substantive right and that entitles a person to prefer appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals have been disposed of by the Tribunal and appeal is sought to be preferred against the decision of the Appellate Tribunal. Therefore, power of this Court has to be exercised under the present provision of FEMA. He has drawn a distinction between the right to file appeal and the right to file belated appeal, urging that right to file statutory appeal is a substantive right and it starts from the date when the proceedings starts. But right of filing a belated appeal is not a substantive right and it does not start when the proceedings start. He further contends that the law of condonation of delay is governed when the delay occurs and the provisions for condonation of delay will be governed by the law in force when the delay occurs. Liberty to apply for right is not an accrued right. In fact, power of condonation of delay is a discretionary power of the Court and it is not a right for an aggrieved person to file a belated appeal. Under Section 35 of FEMA, departure has been made from the FERA with regard to condonation of delay. The High Court cannot condone delay under the aforesaid section beyond the period of sixty days. FEMA being a special Act and the language mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tuted under the FERA which stood dissolved. These appeals without any dispute and demur have to be held to have been preferred against the decision of the Appellate Tribunal that has been constituted under the FEMA. It is true that the appeals were originally filed under the FERA and the same were pending when the present Act came into operation. Fate of pending appeal has been measured in clause (b) subsection (5) of Section 49 of FEMA, which we reproduce appropriately : Section 49(5)(b): Any appeal preferred to the Appellate Board under sub-section (2) of section 52 of the repealed Act but not disposed of before the commencement of this Act shall stand transferred to and shall be disposed of by the Appellate Tribunal constituted under this Act. In the body of the FEMA, there has been no provision and cannot be any provision to prefer any appeal against the decision of the Appellate Board constituted under FERA after FEMA has been brought into existence with dissolution of Board. Hence, going by the plain language of the provisions of Section 35 of FEMA, under which an appeal has to be preferred is set out below: Section 35: Any person aggrieved by any decision or order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umdev Narain Yadav vs- Lalit Narain Mishra, (1974) 2 SCC 133, the Apex Court in the context of section 34 of the Arbitration and Conciliation Act, 1996 has viewed as follows : This decision recognises that it is not essential for the special or local law to, in terms, exclude the provisions of the Limitation Act. It is sufficient if on a consideration of the language of its provisions relating to limitation, the intention to exclude can be necessarily implied. Again in paragraph 13 of the report, it is to be found as follows: Apart from the language express exclusion may follow from the scheme and object of the special or local law. While respectfully following the aforesaid legal principle, we find that the language mentioned in the provision of Section 35 of the FEMA with the phrases allowed to be filed within a further period not exceeding sixty days is clearly expressive of the intention of the legislature to exclude the provisions of Section 5 of the Limitation Act, or for that matter, any provision for any period exceeding sixty days. We are unable to accept the contention of Mr. Banerjee, as rightly argued by Mr. Mukherjee, that the right to prefer appeal be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pronouncement in case of Thirumalai Chemicals Ltd. vs.- Union of India reported in 2011 (268) ELT 296 may be referred to. Portion of paragraph 14 of the report is apt to be quoted for reliance- .Right of appeal may be a substantive right but the procedure for filing the appeal including the period of limitation cannot be called a substantive right, and aggrieved person cannot claim any vested right claiming that he should be governed by the old provision pertaining to period of limitation . It would appear from the language mentioned in the aforesaid sections that once the fact constituting the situation for exclusion is established, it becomes a matter of right; in other words, a substantive right to get the benefit of exclusion. Our legal views is supported by the observation of Supreme Court in the case of Ketan V. Parekh vs.- Special Director, Directorate of Enforcement reported in 2012 (275) ELT 3 (SC) (VOL 2) (see Para 23). While considering the aspect of applicability of Section 6 of the General Clauses Act, we think this provision has no general and sweeping application. The applicability thereof is clearly conditional, that is apparent from the section its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. (emphasis supplied by us) We find, in case of appeal against the decision of the Appellate Tribunal under FEMA, the Court has been empowered to condone delay for a maximum period of sixty days and this power is so rigid apparently that we without any difficulty conclude the legislature has expressed different intention making provision for power of condonation of delay. The contention of Mr. Banerjee that since occurrence of the alleged violation of FERA took place when the FEMA was not in operation, initiation of the proceedings under the FERA has to be continued with the right of appeal, under the provision of former enactment by virtue of sub-section (4) of Section 49 of FEMA, is not acceptable to this Court as this has to be read subject to the provision of sub-section (3) of Section 49 of the said Act. Sub-section (3) of Section 49 of FEMA is reproduced below : Section 49, sub-section (3): Notwithstanding anything contained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the same subject, the provision relating to condonation of delay will not be saved by applying Section 6 of the General Clauses Act. In view of the aforesaid discussion, we are unable to accept the contention of Mr. Banerjee. We, therefore, hold that the application under Section 5 of the Limitation Act for condonation of delay for a period exceeding sixty days, as mentioned in the proviso of Section 6 of the General Clauses Act, is not entertainable. In other words, the High Court cannot condone delay for a single day exceeding sixty days, as mentioned in the said section, simply because, the High Court is not conferred with such power. If there is no power question of granting relief does not arise. In any event we fail to understand why Section 5 of Limitation Act is required to be applied, as specific and separate power of High Court to condone delay both under repealed Act and present Act has been conferred. It would however been relevant had both the statutes remain silent absolutely on this aspect. Therefore, we with respect express our inability to accept the views of the referring Division Bench, and we hold that the views taken by the earlier Division Bench is the ..... 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