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TMI Blog2015 (9) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... was inaction and negligence on part of various officers – No attempt was made for long seven months to rectify it and refile appeal – Application for condonation of delay cannot be decided as matter of routine as vested right accrues in favour of opposite party and benefit of such right cannot be disturbed lightly – No merit found in application of appellant seeking condonation of delay – Accordingly, other applications are also dismissed – Decided against Applicant - CRL.A. 276/2012 - - - Dated:- 28-2-2013 - <!--[if gte mso 9]> <![endif]--> <!--[if gte mso 9]> Normal 0 false false false EN-IN X-NONE <![endif]--><!--[if gte mso 9]> ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant (Enforcement Directorate) urged that the Appellate Tribunal?s order dated 09.09.2009 was communicated to the office of the Enforcement Directorate on 23.09.2009. The appellant decided to challenge the said order and sent the comments/ instructions to the previous Standing Counsel. The detailed appeal was prepared and transmitted to the department for approval of the competent authority. After the final approval, the appeal was preferred in the High Court. Mr.Atul Nanda, Cental Government Standing Counsel informed the appellant that the appeal was filed vide Diary No.183108/2010 and was lying under objection in the High Court Registry. Thereafter, Mr.Atul Nanda was designated Senior Counsel and the proposed appeal was returned to the Litigation Section vide letter dated 11.07.2011 for allotting to some other advocate. On 25.07.2011, Litigation Section (High Court) issued BT in favour of Mr.Sachin Datta. He took steps for refiling the appeal alongwith condonation of delay application. Correspondence were exchanged to ascertain the status of appeal. Vide letter dated 15.12.2011, Mr.Sachin Datta, Central Government Standing Counsel informed the department regarding return of the br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Tribunal constituted under FEMA, in my view, the provisions of Section 35 of the FEMA are attracted and the period of limitation for filing the appeal cannot be extended beyond 120 days. 7. In Thirumalai Chemicals Limited vs. Union of India (UOI) and ors., 2011 (6) SCC 739, the Supreme Court held : 14. Substantive law refers to body of rules that creates, defines and regulates rights and liabilities. Right conferred on a party to prefer an appeal against an order is a substantive right conferred by a statute which remains unaffected by subsequent changes in law, unless modified expressly or by necessary implication. Procedural law establishes a mechanism for determining those rights and liabilities and a machinery for enforcing them. Right of appeal being a substantive right always acts prospectively. It is trite law that every statute prospective unless it is expressly or by necessary implication made to have retrospective operation. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5th Edn.(2008) Page 321 while dealing with retrospective operation of procedural provisions has stated that provisions laying down limitation periods fall into a special category and opined that although prima facie procedural, they are capable of effectively depriving persons of accrued rights and therefore they need be approached with caution. 25. The appellate Board under FERA, it may be noted stood dissolved and ceased to function when FEMA was enacted. Therefore, any appeal against the order of the adjudicating officer made under FERA, after FEMA came into force, had to be filed before the Appellate Tribunal constituted under FEMA and not to the Appellate Board under FERA. Section 52 of FERA stipulates the limitation for an appeal against the orders of the adjudicating officer to the Appellate Board. It provides the period of limitation as 45 days but the Board may entertain an appeal after the expiry of 45 days but not beyond 90 days. Under FEMA, an appeal lies to the appellate 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d clause does not specifically refer to appeals preferred against adjudication orders passed under FEMA with reference to causes of action which arose under FERA. We have already noticed the right of appeal under FEMA has already been saved in respect of cause of action which arose under FERA however subject to the proviso to Sub-section (2) of Section 19 , in the case of belated appeals. 28. Above discussion will clearly demonstrate that Section 49 of FEMA does not seek to withdraw or take away the vested right of appeal in cases where proceedings were initiated prior to repeal of FERA on 01.06.2000 or after. On a combined reading of Section 49 of FEMA and Section 6 of General Clauses Act, it is clear that the procedure prescribed by FEMA only would be applicable in respect of an appeal filed under FEMA though cause of action arose under FERA. In fact, the time limit prescribed under FERA was taken away under the proviso to Sub- section (2) of Section 19 and the Tribunal has been conferred with wide powers to condone delay if the appeal is not filed within forty-five days prescribed, provided sufficient cause is shown. Therefore, the findings rendered by the Tribunal as well ..... X X X X Extracts X X X X X X X X Extracts X X X X
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