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TMI Blog2015 (2) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... was consumed. For this reason, it has been prayed that delay in filing the appeal be condoned. Th application for condonation of delay has been contested by the Counsel for the respondents and submits that since the appeal has been filed under Section 35 of Foreign Exchange Management Act, 1999 [hereinafter referred to as the "FEMA"], the limitation prescribed under Section 35 of FEMA will apply. Reliance has been placed on the law laid down by the Hon'ble Supreme Court in Thirumalai Chemicals Ltd. v Union of India : (2011) 6 SCC 739, where it was observed: "The question we have already pointed out is whether Section 52 (2) of FERA or Section 19(2) of FEMA will govern the appeal. As noticed above, any provision relating to limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel for the respondent further submitted that Section 19 of FEMA provides for appeals to the Appellate Tribunal and Section 19(2) that provides for limitation of 45 days for appeals, enables the Tribunal to condone any delay beyond the period of 45 days, without any upper limit, whereas Section 35 of FEMA providing for appeals to the High Court provides for a limitation of 60 days, and puts an upper limit of 60 days up to which delay can be condoned. The present appeal admittedly has been filed after delay of 352 days which cannot be condoned. To strengthen the aforesaid argument, reliance has been placed on Union of India, through the Directorate of Enforcement vs. Ashok J. Ramsinghani :(2011) 107 SCL 335 (Bom.) wherein it was h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. S.L.A.O., Bangalore : AIR 1987 SC 1353 wherein it was observed and held as under: "16. The law of limitation is intended to provide some sort of discipline in proceedings before the Court. The very fact that this law prescribes certain fixed period for doing certain things itself means that the legislative intention is to enforce discipline in Court affairs which cannot be left to the personal whims of a person or to his convenience. Certain discipline is therefore, inherent in every concept of the law of limitation and this can offer no ground for grudge to any one, much less, the State. If State actions are weighted by cumbersome beurocratic procedures, the private individual also may suffer from paucity of hands and funds. If law ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be viewed in a pedantic manner. (ii) Approach in considering the cause shown should be such which would advance the cause of substantial justice rather than throttle it. (iii) The party which seeks condonation must also bear the burden of showing that despite all necessary steps being taken to file the appeal within time it failed due to cause beyond its control. There must be absence of negligence or inaction and also no lack of bona fide, should be attributable to it. (iv) Only on crossing these hurdles can an application for condonation succeed. However, each case deserves to be decided on its own facts and circumstances and no strait jacket formula can be prescribed. Having concluded on what should be the approach in considering th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal against the decision or order of the Appellate Tribunal would lie before the High Court provided the appeal is filed within a period of 60 days, extendable by a further period not exceeding 60 days, if the High Court is satisfied that sufficient cause prevented the filing of the appeal within the prescribed period. To put it simply, any appeal filed before the High Court under Section 35 of FEMA beyond 120 days would be time barred. Interpreting similar provisions contained in the Central Excise Act, 1944, the Apex Court in the case of M/s. Singh Enterprises v 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 day ..... X X X X Extracts X X X X X X X X Extracts X X X X
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