TMI Blog2014 (4) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... nal 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 - Condonation denied. - CRL. A. 1503/2011 - - - Dated:- 3-4-2014 - Hon'ble Mr. Justice S. P.Garg,JJ. For the Appellant : Mrs. Rajdipa Behura, Advocate. For the Respondent : Mr. Muneesh Malhotra, Advocate with Mr. Vikram V.Minhas, Advocate. ORDER S. P. Garg, J. 1. Crl.A.1503/2011 has been preferred under Section 54 of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as FERA ) against the final order dated 21.08.2009 of Appellate Tribunal for Foreign Exchange, New Delhi in Appeal No. 610/2003. The Appellate Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. 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 perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay in filing the appeal if sufficient cause is shown, are procedural rights. 6. It further held : 19. Law of limitation is generally regarded as procedural and its object is not to create any right but to prescribe periods within which legal proceedings be instituted for enforcement of rights which exist under substantive law. On expiry of the period of limitation, the right to sue comes to an end and if a particular right of action had become time barred under the earlier statute of limitation the right is not revived by the provision of the latest statute. Statutes of limitation are thus retrospective insofar as they apply to all legal proceedings brought after their operation for enforcing cause of action accrued earlier, but the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver empowered to entertain appeals filed after the expiry of 45 days if it is satisfied that there was sufficient cause for the delay in filing the appeal. Though both Section 52(2) of FERA and Section 19(2) of FEMA provide a limitation of 45 days and also give the discretion to the appellate authority to entertain an appeal after the expiry of 45 days, if the Appellant was prevented by sufficient cause from filing an appeal in time, the appellate authority under FERA could not condone the delay beyond 45 days whereas under FEMA, if the sufficient cause is made out, the delay can be condoned without any limit. The question we have already pointed out is whether Section 52(2) of FERA or Section 19(2) of FEMA will govern the appeal. As notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 49 refers to appeal preferred and pending before the Appellate Board under FERA at the time of repeal. The said 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 comb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing before the Appellate Board on the date of commencement of FEMA shall be transferred to the Appellate Tribunal constituted under FEMA. Thus, on commencement of FEMA, appeal against the adjudication order passed under FERA would be maintainable before the appellate authorities constituted under FEMA within the period of limitation prescribed under FEMA. In other words, appeals against adjudication orders passed under FERA or FEMA after the commencement of FEMA, have to be filed before the appellate authorities constituted under FEMA within the period of limitation prescribed for filing appeals before the appellate authorities constituted under FEMA. 8. Undoubtedly, Section 54 FERA permits an appeal to be filed to the High Court within ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
