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TMI Blog2012 (11) TMI 971X X X X Extracts X X X X X X X X Extracts X X X X ..... delay in filing the appeal can be condoned after the expiry of the 60 days yet the period of delay could not be condoned beyond 90 days - there is a complete exclusion of Section 5 of the Limitation Act - Tribunal has no power to condone the delay beyond the period of 90 days while dealing appeals under the FERA - appeals are dismissed - CRL. A. No. 340 to 344/2009 - - - Dated:- 9-2-2011 - MR. A.K. PATHAK J. Appellant: Mr. Ashutosh Dubey and Mr. Lov Kumar Sharma, Advs. Respondent: Mr. Sachin Datta and Mr. Manikya Khanna, Advs. A.K. PATHAK, J. 1. By these appeals appellants have assailed a common order dated 24th March, 2008 passed by the Appellate Tribunal for Foreign Exchange (for short hereinafter referred to as Tribunal ) in Appeal nos. 16/2008 to 20/2008. All the appeals are being disposed of together as not only the facts, but the question of law involved therein is same. 2. Vide order dated 11th October, 2007 adjudicating authority i.e. office of Special Directorate of Enforcement, had held M/s Opera House Exports Ltd. and its directors (appellants) guilty of contravention of provisions of Section 18(2) and 18(3) of the Foreign Exchange Regulation Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond the period of 90 days? 4. FEMA was enacted on 1st June, 2000 as a result whereof, FERA stood repealed. It is an admitted position. Section 49 of FEMA contains several clauses which reads as under:- 49 (1) The Foreign Exchange Regulation Act, 1973 (46 of 1973 ) is hereby repealed and the Appellate Board constituted under sub- section (1) of section 52 of the said Act (hereinafter referred to as the repealed Act) shall stand dissolved.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anything contained in any other law for the time being in force, no court shall take cognizance of an offence under the repealed Act and no adjudicating officer shall take notice of any contravention under section 51 of the repealed Act after the expiry of a period of two years from the date of the commencement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 51 of the repealed Act after the expiry of a period of two years from the date of the commencement of FEMA. In other words, sun set period of two years was provided within which cognizance of the offence committed under the repealed act could have been taken by Adjudicating Authority. In case the cognizance of any offence had been taken by the Adjudicating Authority within the sun set period the same was to be governed by the provision of repealed act in view of Sub-section 4 of Section 49 of FEMA. Section 49(5)(b) further provides that 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 the FEMA shall stand transferred to and shall be disposed of by the Appellate Tribunal constituted under the FEMA. Sub-section 6 of Section 49 also specifies that the general application of Section 6 of the General Clauses Act, 1987 save as provided in Sub-section (3) would not be effected. Section 6 of the General Clauses Act provides for a protection to any right, privilege, obligation or liability acquired or accrued under any enactments which had been repealed. 6. In S.K. Mittal and Anr. Vs. Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder is served on the person 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of 90 days the Court has no power to condone the delay. The Appellate Tribunal on 26.3.2005, had rightly dismissed the appeal on this ground by invoking Section 52(2) of the FERA holding that the delay of 118 days could not be condoned; the outer limit being 90 days. The said order calls for no interference. 10. Rule 7(2) of the Employees Provident Fund Appellate Tribunal (Procedure) Rules, 1997 (for short hereinafter referred to as the Rules ) reads as under:- Section 7(2) Any person aggrieved by a notification issued by the Central Government or an order passed by the Central Government or any other authority under the Act, may within 60 days from the date of issue of the notification/order, prefer an appeal to the Tribunal. Provided that the Tribunal may if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the prescribed period, extend the said period by a further period of 60 days. Provided further that no appeal by the employer shall be entertained by the Tribunal unless he has deposited with the Tribunal a Demand Draft payable in the Fund and bearing 75% of the amount due from him as determined ..... X X X X Extracts X X X X X X X X Extracts X X X X
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