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TMI Blog2008 (5) TMI 760X X X X Extracts X X X X X X X X Extracts X X X X ..... from total financial disability and are unable to make any pre-deposit of penalty. 4. These applicants have filed application for review under section 28(2)(f) Foreign Exchange Management Act, 1999, seeking recall of the dismissal order and also for rehearing of the application for dispensation of pre-deposit after recalling the pre-deposit order dated 8-3-2004. 5. Briefly stated, these along with another appeal are filed against Adjudication Order No. SDE(SKP)/III/293/2003 dated 8-12-2003, passed by Special Director, Enforcement Directorate, imposing a penalty of Rs. 50,00,000 against each of the appellants herein besides separate penalty on M/s. Peacock Industries Ltd., the appellant-company in Appeal No. 105/2004, for the reasons of failure to realize and repatriate exports proceeds in contravention of section 18(2) and 18(3) read with section 68(1) Foreign Exchange Regulation Act, 1973. Ld. Counsel Shri Ajay Majithia made lengthy arguments in favour of the applicants. 6. According to Shri A.C. Singh, DLA, these proceedings are conducted under Foreign Exchange Regulation Act, 1973, where power of review is not available to this Tribunal, except the power to correct only clerical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this regard, the arguments advanced by Shri A.C. Singh, DLA, are correct and have to be accepted. Though this Tribunal is cognizant of the situation that the Tribunal is constituted under Foreign Exchange Management Act, 1999, where right to review is available but those provisions under section 28(f) FEM Act, 1999, cannot be imported here in absence of a substantive right to review in FER Act, 1973. The right to review is not a procedural right but the right to review or appeal or revision is always considered as a substantive right (refer Garikapati Veeraya v. N. Subbiah Choudhary AIR 1957 SC 540). Therefore, the remedy under Foreign Exchange Regulation Act, 1973, available to the appellant can only be availed of. It is not correct to argue as contended by Shri Ajay Majithia that right to review is a procedural right, hence, should be granted under FEM Act, 1999, under which this Tribunal is constituted. 10. There is no controversy that Foreign Exchange Regulation Act, 1973, is a self-contained code where substantive and procedural provisions are interwined. The procedure of holding adjudication proceedings is clearly provided in this statute, including the procedure of filin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative intention to the contrary. That is, the repealing Act may expressly provide or it may impliedly provide against continuance of such right, obligation or liability. . . . . (p. 432) Similar view is also expressed by Hon'ble Supreme Court in Universal Imports Agency v. Chief Controller of Imports Exports [1961] 1 SCR 305. Therefore, the arguments advanced by Shri Ajay Majithia contains no merit and are liable to be rejected. 12. This is an admitted position that this appeal has arisen against adjudication order passed under the provisions of section 52 FER Act, 1973 which Act is repealed and replaced by Foreign Exchange Management Act, 1999, with effect from 1-6-2000, in accordance with Notification No. 371(E), dated 1-5-2000 issued by Central Government pursuant to the powers granted under section 1(4) FEM Act, 1999. This appeal is filed before ATFE Board on 2-1-2004 when FER Act, 1973, was repealed. Howsoever, the adjudication order appealed against was also passed under section 51 FER Act, 1973. Therefore, remedy available under FER Act, 1973 alone can be availed of and pursued by the appellant. Also, by express language, the FER Act, 1973 is repealed and replaced by sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iolation of FER Act. 15. Hon'ble Supreme Court in Gammon India Ltd. v. Spl. Chief Secretary [2006] 3 SCC 354, has extensively examined the consequence of repeal of a statute and replacement thereof by another statute where the following is quoted with approval : 68. Francis Bennion in his book on Statutory Interpretation (2nd Edn.) says that where an English Act passed after 1878, repeals and re-enacts the enactment (with or without modification) then, unless the contrary intention appears, anything done, or having effect as if done, under the enactment repealed, insofar as it could have been done under the provision re-enacted, has effect as if done under that provision. 69. G.P. Singh in his book on 'Principles of Statutory Interpretation', 2006 Edition enumerated the effect of clauses (c) to (e) of section 6 of the General Clauses Act, namely, is to prevent the obliteration of a statute in spite of its repeal to keep intact rights acquired or accrued and liabilities incurred during its operation and permit continuance or institution of any legal proceedings or recourse to any remedy which may have been available before the repeal for enforcement of such rights and li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case (supra) that things done under the repealed statute not only mean things done but also the legal consequences flowing from them. If the interpretation suggested by Ld. Counsel Shri Ajay Majithia is accepted, the saving clause either in section 49 FEM Act, 1999, or section 6 General Clauses Act becomes unnecessary and redundant. The savings is not restricted to the executed contracts or goods imported but also saves the legal consequences flowing therefrom. After repeal of a statute, rights and liabilities of an individual as well as Directorate of Enforcement are saved as held in Gurcharan Singh Baldev Singh's case (supra). 19. This Tribunal is allowed a power to correct clerical errors under section 65 Foreign Exchange Regulation Act, 1973. Also, modification of the contents of any order already passed is not permissible under review powers unless an apparent error is demonstrated on the face of the order. Anything recorded in the order with full knowledge, which is not a mistake or omission or error, cannot be corrected by the same Court or Tribunal. 20. Also, the factual scenario does not permit review of pre-deposit order dated 11-12-2007 or order dated 8-3-2004 becaus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p or omission is an error due to careless mistake on the part of the court liable to be corrected. To illustrate this point it was said that in a case where the order contains something which is not mentioned in the decree, it would be a case of unintentional omission or mistake as the mistake or omission is attributable to the court which may say something or omit to say something which it did not intend to say or omit. No new arguments or re-arguments on merits can be entertained to facilitate such rectification of mistakes. The provision cannot be invoked to modify, alter or add to the terms of the original order or decree so as to, in effect, pass an effective judicial order after the judgment in the case. 22. Also, the Hon'ble Supreme Court in Thungabhadra Industries Ltd. v. Government of Andhra Pradesh AIR 1964 SC 1372 held as follows : There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent erro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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