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TMI Blog2017 (6) TMI 983X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.1. It is the stand of the respondents that, being a statutory appeal, which provides for a specific period of limitation, this Court would have no jurisdiction to condone the delay. 2.2. It is the submission of the respondents that FEMA is a special statute and, therefore, the provisions of Section 5 of the Limitation Act, 1963, would have no application. 3. As against this, learned counsel for the petitioner/appellant makes a contrary submission. In support of his submission, learned counsel relies upon a judgment of a single Judge of the Delhi High Court dated 06.07.2012, passed in Crl.M.A.No.4671 of 2011 in Crl.A.No.493 of 2011 in the matter of: Kamlesh Ishwarbhai Patel V. UOI & Ors., 2012 (130) DRJ 511. 3.1. It is the contention of the learned counsel for the petitioner/appellant that the said judgment was rendered in the context of FEMA, where the Court upon placing reliance on the judgment of the Supreme Court in the matter of: Kailash V. Nanhku and Ors., (2005) 4 SCC 480, has come to the conclusion that the Court, while, entertaining an appeal under Section 35 of FEMA, could, in a given case, upon sufficient cause being shown, condone the delay. 4. We must indicate her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondents state that the impugned judgment was received by the Revenue on 03.02.2016. 8.2. Furthermore, it is the stand of the Revenue that the certified copy of the impugned judgment was received in Chennai, which is the jurisdictional office, i.e., Chennai Office, on 25.04.2016. 8.3. Therefore, if, 04.02.2016 is taken as the date of commencement of the period of limitation, then, 60 days limitation period would expire on 04.04.2016 and the further period of 60 days, which is the period available under the proviso to Section 35 of the FEMA, expire on 03.06.2016. 8.4. On the other hand, if we were to take 03.02.2016 as the date of commencement of limitation, the initial period of 60 days will expire on 02.04.2016, while further period of 60 days will expire on 02.06.2016. 8.5. It is not disputed by both sides, that the instant appeal in this Court was filed on 08.09.2016. 8.6. Therefore, if, 04.02.2016 is taken as the date of commencement, as per the record available with us, the Revenue has overshort the period of 120 days, which is the maximum period, according to the contesting respondents, available for condonation, by 68 days, whereas, if, 03.02.2016 is taken as the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 60 days". 10.2. Therefore, as to whether or not, this Court would have power to condone the delay beyond the period provided in the proviso, would depend on the language used. 11. It is the contention of Mr.Jayachandran, who appears on behalf of the contesting respondents, that given the language used in the proviso to Section 35 of FEMA, this Court has no leeway to condone the period of delay, beyond the time frame provided therein. 11.1. Learned counsel submits that Section 5 of the Limitation Act, 1963 would have no application, on account of the fact that, it is a special Statute. 12. As against this, Mr.Rajinish Pathiyil contends to the contrary. 12.1. As indicated above, learned counsel relied upon the judgment of a single Judge of the Delhi High Court in the case of Kamlesh Ishwarbhai Patel V. UOI & Ors., 2012 (130) DRJ 511 to buttress his submission. 13. We had noticed, at the very outset, that the said judgment is largely predicated on the view taken by the Supreme Court in the matter of: Kailash V. Nanhku and Ors., (2005) 4 SCC 480. 13.1. It is pertinent to note that in Kailash V. Nanhku and Ors.,, the Supreme Court was called upon to rule, whether the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in Kailash V. Nanhku and Ors., can be applied, in our opinion, to understand the scope and ambit of Section 35 of FEMA. 13.7. Therefore, to our minds, the principle, which is enunciated in the matter of Kailash V. Nanhku and Ors., (2005) 4 SCC 480 would not be applicable to the appeals filed with the High Court under Section 35 of FEMA. 13.8. On the other hand, in respect of pari materia provision, which is Section 35 of the CE Act, the Division Bench of the Delhi High Court in the case of M.R.Tobacco Pvt. Ltd. V. Union of India, 2004 (178) E.L.T. 137 (Del.), has, after considering extensively the law on the subject, came to the conclusion that the High Court cannot condone the delay beyond the period provided in the proviso to Section 35 of the CE Act. 13.6. For the sake of convenience, the said provision is extracted hereafter: " 35. APPEALS TO COMMISSIONER (APPEALS). (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) hereafter in this Chapter referred to as the Commissioner (Appeals) within "within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. (4)........" 14.6. The Court, in that case, was considering, as to whether an application to set aside the award, where it had been filed after the expiry of the condonable period, could be entertained by the High Court. 14.7. Looking at the language, the Court made the following apposite observations: "10.This decision recognises that it is not essential for the special or local law to, in terms, exclude the provisions of the Limitation Act. It is sufficient if on a consideration of the language of its provisions relating to limitation, the intention to exclude can be necessarily implied. As has been said in Hukumdev Narain Yadav v. Lalit Narain Mishra [(1974) 2 SCC 133] : (SCC p. 146, para 17) If on an examination of the relevant provisions it is clear that the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n no uncertain terms: 5.Extent of judicial intervention. Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part. 15.The Part referred to in Section 5 is Part I of the 1996 Act which deals with domestic arbitrations. Section 34 is contained in Part I and is therefore subject to the sweep of the prohibition contained in Section 5 of the 1996 Act. 16.Furthermore, Section 34(1) itself provides that recourse to a court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). Sub-section (2) relates to grounds for setting aside an award and is not relevant for our purposes. But an application filed beyond the period mentioned in Section 34, sub-section (3) would not be an application in accordance with that sub-section. Consequently by virtue of Section 34(1), recourse to the court against an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under Section 34 is emphasised by the provisions of Section 36 which provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, the Division Bench of the Calcutta High Court, in the case of Union of India V. Jagadish Prasad Jalan Nandalal, 2012 (286) E.L.T. 525 (Cal.) came to the conclusion that the High Court would not have power to condone the period of delay beyond the time frame provided in the proviso to the said Section. 15.1. For the sake of convenience, the observations made in that behalf, which are contained in paragraph 17 to 22, are extracted hereafter: In the body of the FEMA, there has been no provision and cannot be any provision to prefer any appeal against the decision of the Appellate Board constituted under FERA after FEMA has been brought into existence with dissolution of Board. Hence, going by the plain language of the provisions of Section 35 of FEMA, under which an appeal has to be preferred is set out below: Section 35: Any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any question of law arising out of such order: Provided that the High Court may, if it is satisfied that the appellant was prevented by su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is sufficient if on a consideration of the language of its provisions relating to limitation, the intention to exclude can be necessarily implied. Again in paragraph 13 of the report, it is to be found as follows: Apart from the language express exclusion may follow from the scheme and object of the special or local law. While respectfully following the aforesaid legal principle, we find that the language mentioned in the provision of Section 35 of the FEMA with the phrases allowed to be filed within a further period not exceeding sixty days is clearly expressive of the intention of the legislature to exclude the provisions of Section 5 of the Limitation Act, or for that matter, any provision for any period exceeding sixty days. (Emphasis is ours) 16. Similar view has also been taken by the Division Bench of the Bombay High Court in the case of Union of India V.Ashok J.Ramsinghani, 2011 (272) E.L.T. 534 (Bom.) and in Civil Application No.140 of 2010 in FERAST No.22607 of 2010, in the case of Union of India V. Reliance Industries Ltd.; 17. We may note that a single Judge of the Delhi High Court, in the case of Enforcement Directorate V. American Express Bank & Ors., MANU ..... X X X X Extracts X X X X X X X X Extracts X X X X
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