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Appeal to Special Director (Appeals) [Section 17] - FEMA Ready Reckoner - FEMAExtract Appeal to Special Director (Appeals) In the FEMA , there are three appellate forum, Special Director( Appeals), the Appellate Tribunal and the High court In the FERA there were only two appellate forums FERA Board High Court Section 17(1) provides Appointment and Jurisdiction of the Special Director (Appeals) Section 17(1) empowers the central government to issue notification for appointment of one or more special Director (Appeal). Such first appellate authority is created to hear appeals against the order of the Adjudicating Authorities specified in section 17(2 ), viz the assistant director of enforcement and the Deputy Director of enforcement. The Central government shall notify under section 17(1) specify the matter and place in relation to which in special Director (Appeal my exercise jurisdiction In exercise of the power under the section 17(1) and in supersession of notification no. S.O. 373(E), dated 05-02-2016 the central government has issued order S.O. 3958(E), dated 24-09-2021 appointing Regional Special directors (Appeals) to hear appeal against the order of the Adjudicating Authorities. The Said order Specifies the jurisdiction of the Regional Special Director (Appeals) Station wise, Zone-wise and sub-Zone wise. The Central Government shall, by notification, appoint one or more Special Directors (Appeals) to hear appeals against the orders of the Adjudicating Authorities under this section and shall also specify in the said notification the matter and places in relation to which the Special Director (Appeals) may exercise jurisdiction. Section 17(2) provides Aggrieved person can appeal to the Special Director ( Appeals) Any person aggrieved by an order made by the Adjudicating Authority, being an Assistant Director of Enforcement or a Deputy Director of Enforcement, may prefer an appeal to the Special Director (Appeals). Section 17 (3) provides Time Limit for filling Appeal under section 17(1) Every appeal shall be filed within 45 days from the date on which the copy of the order made by the Adjudicating Authority is received by the aggrieved person. Such appeal shall be file in such form, verified in such manner and be accompanied by such fee as may be prescribed. The relevant prescriptions are found in the The Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000 As per section 17(3) , the Central government has made the captioned Rules for holding inquiry for the purpose of imposing the penalty and the appeal under chapter V of the act. The Rules relevant to appeal to the Special Director (Appeals) are Rules 5 to 9 of the The Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000 The various procedural prescription in these Rules are follows Rule 5(1 ) provides that the, every appeal presented to the Special Director (Appeals) under section 17 of the Act shall be in the Form I signed by the applicant. The appeal shall be filed in triplicate and shall be accompanied with three copies of the order appealed against. Such appeal shall be accompanied by a fee of Rupees 5000/- in the form of cash or demand draft payable in favour of the Special Director (Appeal). Rule 5(2) provides that the , appeal shall set forth concisely and under distinct heads the grounds of objection to the order appealed against without any argument of narrative and such grounds shall be numbered consecutively; and shall specify the address for service at which notice or other processes may be served on the applicant, the date on which the order appealed against was served on the applicant. Rule 5(3) provides that the Where the appeal is presented after the expiry of the period of 45 days referred to in section 17(3) it shall be accompanied by a petition, in triplicate, duly verified and supported by the documents, if any, relied upon by the applicant, showing cause how the applicant had been prevented from preferring the appeal within the said period of forty five days. Rule 5(4) provides that the Any notice required to be served on the applicant shall be served on him in the manner specified in rule 9 at the address for service specified in the appeal. Rule 6 provides Procedure before Special Director (Appeals) (1) On receipt of an appeal under rule 5, the Special Director (Appeals) shall send a copy of the appeal, together with a copy of the order appealed against, to the Director of Enforcement. (2) The Special Director (Appeals) shall, then, issue notices to the applicant and the Director of Enforcement fixing a date for hearing of the appeal. (3) On the date fixed for hearing of the appeal or any other day to which the hearing of the appeal may be adjourned, the applicant as well as the presenting officer of the Directorate of Enforcement shall be heard. (4) Where on the date fixed, or any other day to which the hearing of the appeal may be adjourned, the applicant or the presenting officer fail to appear when the appeal is called for hearing, the Special Director (Appeals) may decide the appeal on the merits of the case. Rule 7 provides Content of order of the Special Director (Appeal ) Contents of the Order in appeal (1) The order of Special Director (Appeals) shall be in writing and shall state briefly the grounds for the decision. (2) The order referred to in sub-rule (1) shall be signed by the Special Director (Appeal) hearing the appeal. Rule 8 Representation of party Any applicant who has filed an appeal before the Special Director (Appeals) under section 17 of the Act, may appoint a legal practitioner or a charted accountant to appear and plead and act on his behalf before the Special Director (Appeal) under the Act. Rule 9 provides Service of notices, requisitions or orders A notice, requisition or an order issued under these rules shall be served on any person in the following manner, that is to say, (a) By delivering or tendering the notice or requisition or order to that person or his duly authorised person, (b) By sending the notice or requisition or order to him by registered post with acknowledgement due to the address of his place of residence or his last known place or residence or the place where he carried on, or last carried on, business or personally works or last worked for gain, or (c) By affixing it on the outer door or some other conspicuous part of the premises in which the person resides or is known to have last resided or carried on business or personally works or last worked for gain and that written report thereof should be witnesses by two persons; or (d) If the notice or requisition or order cannot be served under clause (a) or clause (b) or clause (c), by publishing in a leading newspaper (both in vernacular and in English) having vide circulation of area or jurisdiction in which the person resides or is known to have last resided or carried on business or personally works or last worked for gain. Condonation of delay in filling appeal As per proviso of section 17(3) , The Special Director (Appeals) may entertain an appeal after the expiry of the 45 days from the date of services of the Adjudication order on the aggrieved person, if he is satisfied that there was sufficient cause for not filing it within that period. Section 17(4) provides Opportunity of being of heard On receipt of an appeal under section 17(1), the Special Director (Appeals) may after giving the parties to the appeal an opportunity of being heard, pass such order thereon as he thinks fit confirming, modifying or setting aside the order appealed against. Section 17(5) provides right to appellate party to get copy of order The Special Director (Appeals) shall send a copy of every order made by him to the parties to appeal and to the concerned Adjudicating Authority. Section 17(6) provides Nature and scope of power of the Special Director (Appeal) The Special Director (Appeals) shall have the same powers of a civil court which are conferred on the Appellate Tribunal under sub-section (2) of section 28 and - (a) all proceedings before him shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code ; (b) shall be deemed to be a civil court for the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973.
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