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TMI Blog2018 (3) TMI 1066X X X X Extracts X X X X X X X X Extracts X X X X ..... arnataka to submit the required evidence regarding utilization of the foreign exchange remitted for the purposes it was acquired but they have failed to submit any such evidence either in response to the SCN or at the time of personal hearing given to them. This leads to the conclusion that the subject imports have not taken place and thereby not utilizing the said foreign exchange acquired by M/s Sushil Sales Corporation, Mumbai for the imports of goods for which it was acquired which is a contravention of the provisions of Section 8(3) & 8(4) of FERA, 1973 read with Section 49(3) & (4) of FEMA, 1999. I am therefore, satisfied that the charges against M/s Sushil Sales Corporation, Mumbai are established and proved beyond reasonable doubt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Government shall, by notification, appoint one or more Special Directors (Appeals) to hear appeals against the orders of the Adjudicating Authorities under this section and shall also specify in the said notification the matter and places in relation to which the Special Director (Appeals) may exercise jurisdiction. (2) Any person aggrieved by an order made by the Adjudicating Authority, being an Assistant Director or Enforcement or a Deputy Director of Enforcement, may prefer an appeal to the Special Director (Appeals)." 7. Section 19(1) itself mandates that appeals other than those referred to in Section 17(1) or Special Director (Appeals) may be preferred before the Appellate Tribunal for Foreign Exchange, meaning thereby that app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect on Polestar Electronic (P) Ltd. Vs. Addl. Commissioner, Sales Tax 1978 SCR (3) 98. 10. The position as regards the application of FEMA for a contravention in the FERA issue in hand has been settled in the case of Tirumalai Chemicals Ltd. Vs. Union of India (AIR 2011 SC 1725):- 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 FE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cil and this Court (vide the Colonial Sugar Refining Company Ltd. v. Irving 1905 AC 369 and Garikapatti Veeraya v. N. Subbiah Choudhury) 1957 SCR 488 but the forum where such appeal can be lodged is indubitably a procedural matter and, therefore, the appeal, to right to which has arisen under a repealed the Act, will have to be lodged in a forum provided for by the repealing Act. That the forum of appeal, and also the limitation for it, are matters pertaining to procedural law will be clear from the following passage appearing at page 462 of Samond's Jurisprudence (12th Edn.): Whether I have a right to recover certain property is a question of substantive law, for the determination and the protection of such rights are among the ends of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eputy Director (Appeals) and appeals against the orders of all other Adjudicating Authorities are maintainable before the Appellate Tribunal constituted under FEMA." 14. It is evident from the Judgement Chitturi Subbanna vs. Kudapa Subbanna & Others 1965 AIR 1325, 1965 SCR (2) 661, that a pure question of law can be raised at any point of the proceedings. Thus the appeal filed by the appellant before this tribunal is not maintainable. The ignorance of law has no excuse once there are statutory provisions of the Act. 15. The present appeal in view finding arrived in the case of Tirumalai Chemicals case (supra) should have been initiated before the Special Director (Appeals) instead of the Appellate Tribunal for Foreign Exchange. The appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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