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TMI Blog2014 (1) TMI 1964X X X X Extracts X X X X X X X X Extracts X X X X ..... In the decision of the Supreme Court in Thirumalai Chemicals Limited's [ 2011 (4) TMI 489 - SUPREME COURT ] their lordships have already held that the procedure for filing an appeal being not a substantive right, but is a procedural right, amended provisions may impair such a procedural right and it cannot be said that Section 6 of the General Clauses Act, saves the right to file appeal within a specified period of limitation. The language of Section 35 shows the express intention of legislature to exclude Section 5 of the Act. It was, accordingly, held that the said section 5 of the Act was not applicable. Condonation filed by the petitioner cannot be sustained and the same is liable to be dismissed. - VILAS V. AFZULPURKAR, J. JUDGME ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FERA, the adjudicatory process including the appellate forum under the FEMA was available. 2. The Appeals, bearing Nos. 81 and 82 of 2009, before the appellate tribunal, as stated above, was adjudicated upon by the order of the Tribunal, dated 21.08.2009, whereby both the appeals were allowed and impugned orders were quashed and set aside. As against the order in appeal No. 82 of 2009, the present C.M.S.A. is preferred by the appellant. Since the said appeal was filed on 16.02.2010 under Section 35 of the FEMA, the petitioner also filed an application seeking condonation of delay of 88 days in presentation of the said appeal vide C.M.A.M.P. No. 34 of 2010. The said condone delay petition and maintainability of the appeal is in question in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys and, as such, it cannot be condoned as Section 5 of the Act is not applicable. 5. Learned senior counsel for the respondent has placed strong reliance upon decision of the Supreme Court in 1) Thirumalai Chemicals Limited v. Union of India and others 2011(6) SCC 739, 2) Full Bench Judgment of High Court of Calcutta reported in Union of India v. Jagadish Prasad Jalan Nandalal 2012(286) ELT 525 (Cal), 3) Unreported judgment of Division Bench of High Court of Bombay in Union of India v. Ashok J. Ramsinghani in Civil Application No. 177 of 2010 in Fera Appeal (ST) No. 27028 of 2010 and 4) Union of India v. S.M. Nagaraj (2006) 129 CC 526 (Karn). 6. In order to appreciate the issue involved and the transition period between the FERA and the FEM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Supreme Court in Thirumalai Chemicals Limited's case (supra) was available upto 31.05.2002 as FEMA was enforced with effect from 01.06.2000. The notice in the present case alleging violation of FERA was dated 28.05.2002 and as it was within the sunset period, the petitioner could continue the proceedings under FEMA, and there is no controversy in that regard. 9. The subsequent proceedings namely adjudicatory order as well as the appellate order by the tribunal have both being passed under FEMA and since the petitioner/appellant is aggrieved by the order of the appellate tribunal, a further appeal to this court under Section 35 was to be filed within 60 days of communication of the decision. In the present case, the communication of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udes application of Sections 4 to 24 of the Act and, therefore, Section 5 of the Act is not applicable and the petitioner/appellant cannot seek condonation of delay of more than 60 days by virtue of the proviso under Section 35 of the Act. 12. In the decision of the Supreme Court in Thirumalai Chemicals Limited's (1st cited), their lordships have already held that the procedure for filing an appeal being not a substantive right, but is a procedural right, amended provisions may impair such a procedural right and it cannot be said that Section 6 of the General Clauses Act, saves the right to file appeal within a specified period of limitation. The said decision was followed and it was reiterated by the Full Bench of the Calcutta High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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