TMI Blog2014 (1) TMI 972X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution of India, will not arise - Act cannot be bypassed and the jurisdiction under Article 226 of the Constitution of India cannot be invoked - Decided against assessee. - W.P.NO.20376 OF 2010 AND M.P.NO.1 OF 2010 - - - Dated:- 7-6-2011 - K. Chandru,JJ. For the Petitioner : Mr. M. Abdul Nazeer For the Respondents : Mr. M. Dhandapani ORDER The petitioner has filed the present writ petition seeking to challenge the order dated 01.07.2010 passed in Appeal No.488 / 1994 by the first respondent Appellate Tribunal for Foreign Exchange and after setting aside the same, seeks for a direction to the first respondent to forbear from hearing the Appeal No.488 / 1994. 2. When the writ petition came up for hearing on 03. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As against the said order, the preferred an appeal under Section 52 of the FERA before the first respondent sometime during October 1994. He has also filed an application to dispense with the pre-deposit of penalty of Rs.40,00,000/- which is a condition precedent for entertaining the appeal. The petitioner's appeal was taken on file as FERA 488/1994 and he was also asked to appear for a hearing on 15.12.1994 vide communication dated 29.11.1994. 4. It is the stand of the petitioner that the waiver of pre-deposit of penalty was taken up at Foreign Exchange Regulation Appellate Board at Income-Tax Appellate Tribunal, New Income-Tax Building at Chennai by the first respondent Board and was argued by the learned senior counsel. It was further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ows: "3. However, in the light of the above discussion and after considering the background of the case in entirety, the statutory scheme under FER Act, we are of the opinion that the appellant has utterly failed in proving undue hardship on his part and application is liable to be rejected. An order is passed accordingly. The appellant is directed to make balance amount of penalty within 30 days from the date of receipt of this order failing which this appeal will be dismissed on this ground alone. This appeal is fixed on 3rd September, 2010 for reporting the compliance of this order and for further hearing." Challenging the same, the writ petition came to be filed. 6. In the counter affidavit, all the allegations of the petitioner a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to coming to this Court for the correctness or otherwise of the statement made by him. After the last hearing namely on 15.12.1994, many changes have taken place in the statutory law relating to Foreign Exchange. The FERA of 1973 has been repealed by FEMA of 1999 and it had come into existence with effect from 01.06.2000. Under Section 49(4) of FEMA, all offences committed under FERA shall continue to be governed by the provisions of FEMA. Under Section 49(5) of FEMA, any appeal filed under Section 52 of FERA, which was disposed before the commencement of FEMA, shall be stand transferred and shall be disposed of by the Appellate Tribunal constituted under Section 18 of FEMA. If the order of earlier Appellate Board under FERA was not chal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utory forum of appeal on a question of law. That should not be abdicated and given a go-by by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction. 32. No reason could be assigned by the appellants counsel to demonstrate why the appellate jurisdiction of the High Court under Section 35 of FEMA does not provide an efficacious remedy. In fact there could hardly be any reason since the High Court itself is the appellate forum." 10. Very recently, the Supreme Court in United Bank of India v. Satyawa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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