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TMI Blog2015 (5) TMI 939X X X X Extracts X X X X X X X X Extracts X X X X ..... in reading of the provision, the correct position of law. - since the subject appeals were not pending on the date of commencement of FEMA, the Appellate Tribunal, which got constituted after the dissolution of the Appellate Board, had exercised powers under FERA and not had taken recourse to the provisions of the FEMA. In so far as Section 35 of the FEMA is concerned, it gives a right to an aggrieved party to prefer an appeal against “any” “order” or “decision” of the Appellate Tribunal. Therefore, an appeal, even against an interim order of the Appellate Tribunal, will be available to the petitioners. The appeal, however, will have to be preferred, by the aggrieved party (in this case the petitioners herein) before the concerned High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal, i.e., Appeal No. 219/2010, was filed by the company, i.e., petitioner in WP(C) No. 1311/2015, while the remaining three appeals were filed by the three directors of the said company, i.e., Space Age Polymers Pvt. Ltd. (in short SAPPL). 1.2 The Adjudicating Authority, vide order dated 22.10.2010, has imposed penalty of ₹ 23 lacs on SAPPL, and gone on to impose a separate penalty of ₹ 20 lacs each on the remaining petitioners. The impugned order notes that there was a fourth director, Sh Asgar Ali Dawood, who had to be dropped from the proceedings by the respondent herein at the relevant point in time, as he had expired on 27.05.1998. 2. The sum and substance of the proceedings taken out by the respondent is, the fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that that the writ court, should not, exercise its powers under Article 226 of the Constitution as a statutory remedy by way of an appeal under Section 35 of FEMA is available to the petitioners. He has buttressed his submission by seeking to place reliance on another judgement of the Supreme Court in the case of Raj Kumar Shivhare vs Assistant Director, Directorate of Enforcement and Another (2010) 4 SCC 772. 5. Mr Majithia, learned counsel for the petitioners, however says that Section 35 of the FEMA is not available to the petitioners as proceedings in the instant case were commenced under FERA. It is also the learned counsel s contention that an appeal under FERA is also not available as the impugned order is an interim order. Accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foresaid provision, and thus, the disposal of the appeals was by the Appellate Tribunal under FEMA. 8. I must confess, to me, the language of Section 49(5)(b) of FEMA is suggestive of the fact that it is only an appeal, which was pending before the Appellate Board, and which could not be disposed of before the commencement of the Act (i.e., FEMA), would stand transferred to the Appellate Tribunal. Therefore, to suggest that the subject appeals, were disposed of by the Appellate Tribunal, based on the said provision, in my view, does not appear to be, on a plain reading of the provision, the correct position of law. 9. However, Mr Majithia, has not made life easy for himself as the title of appeals filed on behalf of the petitioners he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate tribunal constituted under that Act and Section 19(2) provides that every appeal shall be filed within 45 days from the date on which a copy of the order of the adjudicating authority is received. The appellate is however empowered to entertain appeals filed after the expiry of 45 days if it is satisfied that there was sufficient cause for the delay in filing the appeal. Though both Section 52(2) of FERA and Section 19(2) of FEMA provide a limitation of 45 days and also give the discretion to the appellate authority to entertain an appeal after the expiry of 45 days, if the appellant was prevented by sufficient cause from filing an appeal in time, the appellate authority under FERA could not condone the delay beyond 45 days whereas un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also be condoned. The tribunal and the High Court misdirected themselves in assuming that the period of limitation was governed by Section 52(2) of FERA..... (emphasis is mine) 10. Having regard to the observations of the Supreme Court, this court cannot but decline the request of the petitioners to entertain the writ petitions. The Supreme Court in the case of Raj Kumar Shivhare vs Assistant Director, Directorate of Enforcement and Another has also taken a view that where an alternate remedy is available, a writ court should abjure intervention, under Article 226 of the Constitution. To this though, one must add a caveat, which is, in a case where there is a complete lack of jurisdiction or, breach of principles of natural justice, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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