2007 (12) TMI 555 - AT - FEMA

Summary

Issues:
1. Delay in filing the appeal after an adjudication order imposing penalties.
2. Interpretation of the procedural provisions under the Foreign Exchange Regulation Act, 1973 (FER Act) and the Foreign Exchange Management Act, 1999 (FEMA).
3. Application of the limitation period for filing an appeal under section 52(2) of the FER Act.

Detailed Analysis:

1. The appeal was filed against an adjudication order imposing penalties on a partnership firm and its partners for contravention of the FER Act. The delay in filing the appeal was significant, with the order received on 29-6-2006, and the appeal filed on 21-11-2006, causing a delay of about 145 days. The appellant contended that the appeal was filed after the repeal of the FER Act, and therefore, the delay should be governed by the procedural provisions of FEMA, 1999. However, the Tribunal noted that the FER Act is a self-contained code with specific procedural provisions for adjudication and appeals. The argument that the new procedural provisions under FEMA, 1999 should apply was deemed fallacious as section 49(4) of FEMA, 1999 saved the provisions of the repealed FER Act, making it applicable to the appeal.

2. The Tribunal emphasized that when a law is altered during the pendency of an action, the rights and remedies of the parties should be decided according to the law as it existed when the action began unless the new statute explicitly shows an intention to vary such rights. In this case, the provisions of the FER Act were considered applicable as per section 49(4) of FEMA, 1999. The Tribunal cited a Supreme Court decision to support the principle that the re-enactment of a law affirms the old provisions unless there is an intention to vary them. Therefore, the appeal had to be decided under the provisions of the FER Act, 1973, as it was the law in force when the adjudication order was passed.

3. The provisions of section 52(2) of the FER Act set a limitation period of 90 days for filing an appeal, with a provision to condone the delay up to 90 days if sufficient cause is shown. In this case, the appeal was filed after 90 days from the date of receipt of the order, making it impermissible for the Tribunal to condone the delay beyond the statutory limit. Consequently, the appeal was dismissed due to the delay exceeding the prescribed period, and the legislative mandate preventing the condonation of such delays.