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TMI Blog2014 (1) TMI 1223X X X X Extracts X X X X X X X X Extracts X X X X ..... ange. The case of the respondent is that the appellant company failed to submit the Exchange Control Copy of the Bill of Entry to the State Bank of Hyderabad, Chandi Chowk, which was the concerned authorized dealer which had issued the foreign exchange to the appellant company. 2. Section 8(3) and Section 8(4) of the Foreign Exchange Regulation Act, 1973 which has since been repealed reads as under: (3) Where any foreign exchange is acquired by any person, other than an authorised dealer or a money-changer, for any particular purpose, or where any person has been permitted conditionally to acquire foreign exchange, the said person shall not use the foreign exchange so acquired otherwise than for that purpose or, as the case may be, fail to comply with any condition to which the permission granted to him is subject, and where any foreign exchange so acquired cannot be so used or the conditions cannot be complied with, the said person shall, within a period of thirty days from the date on which he comes to know that such foreign exchange cannot be so used or the conditions cannot be complied with, sell the foreign exchange to an authorised dealer or to a money-changer. (4) For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in the aforesaid order that the show cause notices issued to the noticees were returned undelivered with the remarks "company closed long back" and were served upon Raj Kumar Gupta on 27.7.2002 and Shri Bishal Sarup Gupta, Managing Director of the Company had filed a reply dated 12.8.2002 enclosing therewith photocopies of the Bills of Entry for warehousing and copies of the clearance for home consumption. The Adjudicating Officer also noted that in his letter Shri Bishan Sarup Gupta had stated that the company had submitted the Bills of Entry to the State Bank of Hyderabad and had also enclosed, with his reply, a copy of the letter dated 9.2.2000 addressed to the State Bank of Hyderabad in this regard. However, noticing that no evidence from the bank had been submitted to substantiate the claim of submission of the Bill of Entry to the said bank, penalty as referred above was imposed. 5. On 29.4.2005, the appellants filed an appeal before the Appellate Tribunal for Foreign Exchange under Section 19 of the FEMA, along with an application seeking condonation of delay in filing the said appeal. Vide order dated 5.2.2007 the Appellate Tribunal dismissed the appeal solely on the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. [2008(6) Scale 748], Thomas Thomas and another versus The Kottayam Municipality and Another [ILR 2008 (4) Kerala 70], K.C. Sareen versus CBI, Chandigarh [2001 sCC (Crl.) 1186]. 8. A perusal of the decision of the Apex Court in Raj Kumar Gupta (supra) would show that while granting liberty to the appellant before it to file an appeal before the appropriate High Court, within the period of 30 days, the Apex Court directed that the Appellate Authority will consider the question of limitation sympathetically, having regard to the provisions of Section 14 of Limitation Act and also having regard to the fact that he was bonafidely pursuing his case under Article 226 of the Constitution before this Court and then before the Apex Court. Thus, the Apex Court granted liberty to the Appellate Tribunal to extend the benefit of Section 14 of Limitation Act to the appellant, on account of his having filed a writ petition under Article 226 of the Constitution and then an appeal before the Apex Court against the order passed in the writ petition. The contention of the learned senior counsel for the appellants is that if benefit of Section 14 of Limitation Act is extended to the appellants, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 14 of Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules 2000 prescribes the mode of service of notices, requisitions or orders passed under the provisions of FEMA and reads as under:- "Service of notices, requisitions or orders. A notice, requisition or an order issued under these rules shall be served on any person in the following manner, that is to say,-- (a) by delivering or tendering the notice or requisition or order to that person or his duly authorised person. (b) by sending the notice or requisition or order to him by registered post with acknowledgment due to the address of his place of residence or his last known place or residence or the place where he carried on, or last carried on, business or personally works or last worked for gain, or (c) by affixing it on the outer door or some other conspicuous part of the premises in which the person resides or is known to have last resided or carried on business or personally works or last worked for gain and that written report thereof should be witnesses by two persons; or (d) if the notice or requisition or order cannot be served under Cl. (a) or Cl. (b) or Cl. (c), by publishing in a leadin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be open to the petitioner to avail the remedy of an appeal as explained by Supreme Court in para 45 of the judgment in Raj Kumar Shivhare (supra) and urge all the points that the petitioner urges in the writ petition, in the said appeal. Therefore, the appellants would not be unjustified in contending that by way of the order dated 08.09.2010, this Court, following the decision of the Apex Court in Raj Kumar Shivhare (supra), had granted 30 days time to the appellants before this Court to file an appropriate appeal and since that order was not challenged by the respondents before a superior forum, and computed from the day of the order passed in the writ petition, this appeal is within the time stipulated in the said order, having been filed on 07.10.2010. 14. As regards the decision relied upon by the learned senior standing counsel, they are of no help considering that the benefit of Section 14 of Limitation Act was granted by the Apex Court in the case of Raj Kumar Shivhare (supra) and similar benefit was extended by this Court while dismissing the writ petition of the appellants on 08.09.2010 and also considering that if the period during which the appellants were prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for the original order, will govern the period of limitation. Section 52(2) can apply only to an appeal to the appellate Board and not to any appellate tribunal. Therefore, irrespective of the fact that the adjudicating officer had passed the orders with reference to the violation of the provisions of FERA, as the appeal against such order was to the appellate tribunal constituted under FEMA, necessarily Section 19(2) of FEMA alone will apply and it is not possible to import the provisions of Section 52(2) of FERA." 16. It would, thus, be seen that if an appeal preferred by the appellants before the Tribunal, it was required to be dealt with under Section 19 of the FEMA and, therefore, the Appellate Tribunal could entertain the appeals, even after the expiry of 45 days from the receipt of the order of the adjudicating authority if it was satisfied that there was sufficient cause for not filing the appeal within the aforesaid 45 days' period. There is no upper cap on the delay which could be condoned by the Appellate Tribunal, in the event of its being satisfied that there was sufficient cause for not filing the appeal within the prescribed period. 17. In view of the authoritat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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