TMI Blog2014 (4) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... ths to rectify them and refile the appeal. There was slackness on the part of the appellant to take remedial steps. Application for condonation of delay cannot be allowed as a matter of routine as vested right accrues in favour of the opposite party and benefit of such right cannot be disturbed lightly - Condonation denied. - CRL.A. 295/2012 - - - Dated:- 24-3-2014 - S. P. Garg,JJ. For the Appellant: Mr. Subhash Bansal, Advocate. For the Respondents : None. ORDER S. P. Garg, J. 1. Crl.A.295/2012 has been preferred under Section 54 of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as FERA ) against the final order dated 09.09.2009 of Appellate Tribunal for Foreign Exchange, New Delhi in Appeal Nos. 532/2004 to 534/2004. The Appellate Tribunal allowed appeals of the respondents and quashed the adjudication order dated 20.01.2004. CRL.M.A.3304/2012 (delay) in CRL.A. 295/2012 2. The application has been moved for condonation of delay of 804 days in filing the appeal. 3. Learned counsel for the appellant (Enforcement Directorate) urged that the Appellate Tribunal s order dated 09.09.2009 was communicated to the office of the En ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was prevented by sufficient cause from filing the appeal. Since the impugned order was passed by the Appellate Tribunal 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. 5. In Thirumalai Chemicals Limited vs. Union of India (UOI) ors. , 2011 (6) SCC 739, the Supreme Court held : 14. 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 period of limitation cannot be cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect of extinguishing a right of action subsisting on that date. Bennion on Statutory Interpretation 5th Edn.(2008) Page 321 while dealing with retrospective operation of procedural provisions has stated that provisions laying down limitation periods fall into a special category and opined that although prima facie procedural, they are capable of effectively depriving persons of accrued rights and therefore they need be approached with caution. 25. The appellate Board under FERA, it may be noted stood dissolved and ceased to function when FEMA was enacted. Therefore, any appeal against the order of the adjudicating officer made under FERA, after FEMA came into force, had to be filed before the Appellate Tribunal constituted under FEMA and not to the Appellate Board under FERA. Section 52 of FERA stipulates the limitation for an appeal against the orders of the adjudicating officer to the Appellate Board. It provides the period of limitation as 45 days but the Board may entertain an appeal after the expiry of 45 days but not beyond 90 days. Under FEMA, an appeal lies to the appellate tribunal constituted under that Act and Section 19(2) provides that every appeal shall be filed w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 FERA. In fact, the time limit prescribed under FERA was taken away under the proviso to Sub-section (2) of Section 19 and the Tribunal has been conferred with wide powers to condone delay if the appeal is not filed within forty-five days prescribed, provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal do not constitute sufficient cause. Rather it reveals that there was inaction and negligence on the part of the various officers. No sincere efforts were made to pursue the appeal even after objections were raised. No attempt was made for long seven months to rectify them and refile the appeal. There was slackness on the part of the appellant to take remedial steps. Application for condonation of delay cannot be allowed as a matter of routine as vested right accrues in favour of the opposite party and benefit of such right cannot be disturbed lightly. 9. In Directorate of Enforcement vs. Renu Vij , (Crl.A.No.1231/2011) decided on 30.09.2011 and Directorate of Enforcement vs. Harmit Singh Anr. , (Crl.A.No. 276/2012) decided on February 28, 2013, this Court in similar circumstances declined to condone the delay of 507 days 832 days, respectively, in filing the appeals from the date of final order. 10. Negligence of the appellant to pursue the matter is writ large as it failed to take steps to serve the respondents. The appellant did not take any steps on 30.10.2012, 27.02.2013, 13.08.2013 29.10.2013. It failed to furnish the fresh address of the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X
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