TMI Blog2009 (5) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... a, Mr. Vineet Malhotra, Mr. Deepak Anand Mr. Chhimubhal Singh, Advocates. SANJIV KHANNA, J: 1. A common question of law; Court fees payable by the petitioners on their appeals filed before the Appellate Tribunal for Foreign Exchange arises for consideration in the present set of writ petitions. I am not dilating upon facts of individual cases as it is not necessary for the decision of the legal question. The petitioners herein are appellants who have filed appeals before the Appellate Tribunal for Foreign Exchange. These appeals are against penalty orders passed under the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as FERA, for short) but were preferred after the repeal of the aforesaid Act by Foreign Exchange Management Act, 1999 (hereinafter referred to as FEMA, for short) with effect from 1st June, 2000. As per FERA read with Adjudication Proceedings and Appeal Rules, 1974, the Court fees payable on an appeal depends upon the quantum of fine and is subject to maximum Court fees of Rs.2,000/-. As per FEMA read with Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000, the Court fees payable on an appeal before the Foreign E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity or the Special Director (Appeals) levying any penalty, shall while filing the appeal, deposit the amount of such penalty with such authority as may be notified by the Central Government: Provided further that where in any particular case, the Appellate Tribunal is of the opinion that the deposit of such penalty would cause undue hardship to such person, the Appellate Tribunal may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the realisation of penalty. The Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000: 10. Form of Appeal: Every appeal presented to the Appellate Tribunal under section 19 of the Act shall be in the Form II signed by the applicant. The appeal shall be sent in triplicate and accompanied by three copies of the order appealed against. Every appeal shall be accompanied by a fee of rupees ten thousand in the form of cash or demand draft payable in favour of the Registrar, Appellate Tribunal for Foreign Exchange, New Delhi. Provided that the applicant shall deposit the amount of penalty imposed by the Adjudicating Authority or the Special Director (Appeals) as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all stand dissolved. (2) On the dissolution of the said Appellate Board, the person appointed as Chairman of the Appellate Board and every other person appointed as Member and holding office as such immediately before such date shall vacate their respective offices and no such Chairman or other person shall be entitled to claim any compensation for the premature termination of the term of his office or of any contract of service. (3) Notwithstanding anything contained in any other law for the time being in force, no court shall take cognizance of an offence under the repealed Act and no adjudicating officer shall take notice of any contravention under Section 51 of the repealed Act after the expiry of a period of two years from the date of the commencement of this Act. (4) Subject to the provisions of sub-section (3) all offences committed under the repealed Act shall continue to be governed by the provisions of the repealed Act as if that Act had not been repealed. (5) Notwithstanding such repeal, (a) anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led Act was in force. Section 6 is comprehensive and wide. It protects previous operation of the repealed Act; penalty imposed, forfeiture or punishment incurred; investigation, legal proceedings or remedy available and such investigation, legal proceedings may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed. A new legislation in view of section 6 of the General Clauses Act, 1897 is presumed to be prospective only, unless intended to have retrospective operation. Further inquiry is made from the angle whether the new legislature destroys liabilities and rights for past transactions and acts and not whether the new legislation preserves rights and liabilities. In State of Punjab v. Mohar Singh Pratap Singh, AIR 1955 SC 84 the Supreme Court has stated: Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of Section 6 of the General Clauses Act will apply to a case of repeal even if there is a simultaneous re-enactment unless a contrary intention can be gathered from the new statute. 5. The words anything duly done or suffered there under used in Section 6 (b) of the General Clauses Act, 1897 are wide and comprehensive enough to not only take into account the things done, but also the legal consequences that flow therefrom. (Refer, Universal Imports Agency Vs. Chief Controller of Imports and Exports, AIR 1961 SC 41). 6. It is not disputed that FERA and FEMA were/are Central Act and therefore effect and impact of Section 6 of the General Clauses Act, 1897 has to be examined. 7. Sub-section 1 of Section 49 of FEMA states that FERA stands repealed and the Appellate Board constituted under Section 52(1) of the said Act stands dissolved. Sub-section 2 provides that the person appointed as Chairman or Member of the erstwhile Appellate Board shall vacate their office and will not be entitled to claim any compensation for premature termination of his office or contract of service upon repeal of FERA on 1st June, 2000. Sub-section 3 to Section 49 incorporates a sunset clause an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conceivable that any legislature, in providing that regulations made under its statute will have effect as if enacted in the Act, could have intended by those words to say that if ever the Act is repealed and re-enacted (as is more than likely to happen sooner or later), the regulations will have no existence for the purpose of the re-enacted statute, and thus the re-enacted statute, for some time at least, will be in many respects, a dead letter. The answer must be in the negative. Whatever the purpose be which induced the draftsmen to adopt this legislative form as regards the rules and regulations that they will have effect as if enacted in the Act , it will be strange indeed if the result of the language used, be that by becoming part of the Act, they would stand repealed, when the Act is repealed. One can be certain that that could not have been the intention of the legislature. It is satisfactory that the words used do not produce that result. The aforesaid are apposite and explain the purpose behind section 49(5) (a) of FEMA. 9. Clause (b) of sub-section 5 to Section 49 states that any appeal preferred before the Appellate Board under Section 52(2) of FERA shall stand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot thereafter. But for sub-section 3, there would be no limitation period of two years, in view of Section 6 of the General Clause Act, 1897 readwith Sub-section 4 and 6 of the Section 49 of FEMA. By express stipulation effect of Section 6 of the General Clauses Act, 1897 is excluded to the extent indicated in sub-section 3 of section 49 of FEMA. 13. Sub-sections 3 and 4 and Clause (b) of sub-section 5 of Section 49 are not happily worded. On one hand, sub-section 3 refers to Court and sub-section 4 refers to offences yet at the same time sub-section 3 also refers to contravention under Section 51 of FERA. Contravention under Section 51 of FERA is not adjudicated by Courts but the adjudicating authorities under FERA. Criminal offences under FERA were tried in Courts under Sections 56 and 62 of the said Act. However, before me the respondent-Enforcement Directorate has not disputed that the adjudicating orders are covered under sub-sections 3 and 4 to Section 49 and the sunset clause apply to them. Perhaps, the word offences used in sub-section 4 refers to violation of Section 51 of the Act as well as criminal offences and this explains the use of the word court‟ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate authority under FEMA i.e. whether it should be the Special Director or the Assistant Director, I am of the opinion that there is not much merit in this again. By operation of Section 6 of the General Clauses Act, the same authority continues to be empowered, to adjudicate and render findings in the absence of any other statutory indication to the contrary. The cumulative effect of Section 49 of FEMA and Section 6 of the General Clauses Act, in my opinion, are that though FERA stands repealed, yet in respect of the investigations pending before the various authorities, the liability under the FERA, has to be enforced and adjudicated. (Emphasis Supplied) 15. Privy Council in Colonial Sugar Refining Company Limited versus Irving, (1905) AC 369(A) had examined the question whether an appeal against a decision of Supreme Court in Australia would be maintainable before the Council after the Judiciary Act, 1908, which provided for appeals against orders passed by the Supreme Court in Australia before the High Court of Australia. It was held that the appeal after the enactment of the Judiciary Act, 1908 would lie before the High Court of Australia and Lord Macnaghten, who delive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the date of the decision of the inferior court. Further onerous condition or stipulations on the pre-existing right to appeal have the effect of negating and putting fetters on the pre-existing rights, will not apply if they have been imposed after the proceedings were initiated. This principle of law is, however, subject to express enactment or necessary intendment to the contrary in the amendment or the repeal. Therefore, the amended statute or the repealed Act can take away the right to appeal or impose more onerous conditions and fetters on the right to appeal but there should be an express provision or by necessary implication retrospective effect is required to be given. The said legal proposition was again considered at length by the Supreme Court in Garikapati Veeraya versus N. Subbiah Choudhry, AIR 1957 SC 540. The following legal propositions are enumerated in the majority judgment:- 23. From the decisions cited above the following principles clearly emerge: (i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Federal Court continues to exist under the old law, which created the right to appeal and the said vested right continues with only one change that the Federal Court is abolished and the Supreme Court is substituted as the Appellate Forum for giving effect to the right to appeal. Thus, there was only change of Appellate Forum and this did not affect the vested right to appeal. The decision of the Privy Council in the case of Colonial Sugar Refining Company Limited (supra) was again referred to as supporting the said principle. In the said case also, there was a change of the appellate forum. 18. The aforesaid judgment of the Supreme Court has been later on followed in State of Bombay versus M/s Supreme General Films Exchange Limited, AIR 1960 SC 980. Subsequently, in Amba Bai Vs. Gopal AIR 2001 SC 2003, the said principles were equally made applicable to quasi-judicial and executive authorities. In Supreme General Films Exchange (Supra) the Supreme Court observed: 11. The question was considered in reverse in Delhi Cloth and General Mills Co. Ltd. v. Income Tax Commissioner, Delhi and the principle of Colonial Sugar Refining Co. v. Irving was applied. Another decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision was approved by this Court both in Hossein Kasam Dada and Garikapatti Veeraya. 19. In the light of the aforesaid decisions, Section 49 of FEMA and the surrounding factors, it is apparent that Section 49 did not seek to withdraw or take away the vested right to appeal in cases where proceedings were initiated prior to repeal of FERA on 1st June, 2000. FEMA in Section 49(1) and (2) only had the effect of substitution of the Appellate Board under FERA to Appellate Tribunal under FEMA. It did not take away the vested rights to appeal or impose more onerous and stringent conditions for filing of appeals. Imposing stringent or onerous conditions has the effect of taking away vested right for which there must be an express stipulation or implied intendment, which should be apparent and clear from the enactment and the surrounding circumstances leading to the amendment/repeal. It cannot be said that the FEMA in any manner by incorporating Section 49, which specifically makes reference to Section 6 of the General Clauses Act, 1897 wanted to do away and take away the vested right to appeal or impose more stringent or harsher conditions on the right to appeal. The said reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or bye-law, made or issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, form, or bye-law made or issued under the provisions so re-enacted and when any Central Act or Regulation which by a notification under Sec. 5 or 5-A of the Scheduled Districts Act, 1874 (14 of 1874) or any like law, has been extended to any local area, has, by a subsequent notification, been withdrawn from and re-extended to such area or any part thereof, the provisions of such Act or Regulation shall be deemed to have been repealed and re-enacted in such area or part within the meaning of this section. 22. Section 24 of the General Clauses Act, 1897 deals with subordinate legislation, etc. passed under the repealed Act upon re-enactment of a new statute like Section 6 of the same Act which deals with effect of repeal of a Central Act or regulation. It preserves and instil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under FERA is filed under Section 52 and Court Fees is payable on the said appeal as per the 1974 Rules under FERA. Section 52 of FERA applies and is not a dead letter in relation to appeals against adjudication order under FERA. FEMA in view of Section 49 read with Section 6 of the General Clauses Act, 1897 substitutes the Appellate Tribunal instead of the Appellate Board as the forum of appeal under Section 52 of FERA. The appeal in view of Section 6 of the General Clauses Act, 1897 and Section 49 of FEMA is filed under Section 52 of FERA but is heard by a different appellate forum i.e. Appellate Tribunal instead of Appellate Board. Appeals against the adjudication orders passed under FERA are not filed under Section 19 of FEMA. Appeals under Section 19 of FEMA are filed against orders under FEMA including first appeals decided by the Special Directors. The 2000 Rules framed under FERA fix and prescribe Court Fees payable on appeals filed under Section 19 of FEMA and not appeals filed before the Appellate Tribunal under Section 52 of FERA read with Section 49 of FEMA. Rule 10 of 2000 Rules under FEMA by express stipulation applies to appeals filed under section 19 of FEMA. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action is determinative of its taxability [vide Joint Commercial Tax Officer, Harbour Div. II, Madras v. Young Men s Indian Association (Regd.), Madras]. If it is a fee, the enormity of the exaction will be more difficult to sustain. While we do not pronounce, we indicate the implication of the High Court s untenable view. 15. When dealing with a question of court fee, the perspective should be informed by the spirit of the magna carta and of equal access to justice which suggests that a heavy price tag on relief in Court should be regarded as unpalatable. 26. These decisions are not strictly applicable as they relate to interpretation of a statute imposing court fee, a taxing statute. The legal question in the present case does not relate to interpretation of an enactment imposing court fee but effect of re-enactment of a statute, change of appellate forum, section 49 of FEMA read with Section 6 of the General Clauses Act, 1897. However the general observations made in Lakshmi Ammal (supra) are relevant. Learned Counsel for the petitioners had also submitted that some appellants have filed 100-500 appeals as each transaction has been made subject matter of a separate order. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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