TMI Blog2014 (1) TMI 1223X X X X Extracts X X X X X X X X Extracts X X X X ..... riod. There is no upper cap on the delay which could be condoned by the Appellate Tribunal, in the event of its being satisfied that there was sufficient cause for not filing the appeal within the prescribed period. It can hardly be disputed that the Tribunal ought to have considered the application of the appellants for condonation of delay in filing the appeals on merits instead of dismissing them on the ground that the delay beyond 45 days from the prescribed period could not be condoned by it - impugned order dated 5.2.2007 passed by the Appellate Tribunal is hereby set aside and the matter is remanded back to the Tribunal for deciding the application for condonation of delay on merit and in case the delay in filing the appeals is condoned, the said Tribunal shall also decide the appeals on merit - Decided in favour of assessee. - CRL. A. 1254/2010 & Crl. MAs 16637/2010 (stay) & 392/2011 (delay), CRL.A. 1255/2010 & Crl. MAs 16639/2010 (stay) & 190/2011 (delay), CRL.A. 1256/2010 & Crl.MAs 16641/2010 (stay) & 393/2011 (delay), CRL.A. 1257/2010 & Crl.MAs 16643/2010 (stay) & 189/ - - - Dated:- 9-1-2014 - V. K. Jain,JJ. For the Appellant : Mr. Rajiv Virmani, senior advoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been able to use the foreign exchange for the purpose for which he acquired it or, as the case may be, to have used the foreign exchange so acquired otherwise than for the purposes for which it was acquired. Section 50 of the aforesaid Act, to the extent it is relevant, provides that if any person contravenes any of the provisions of this Act other than section 13, clause (a) of sub- section (1) of 1 section 18, or section 18A clause (a) of sub- section (1) of section 19 or any rule, direction or order made thereunder, he shall be liable to such penalty not exceeding five times the amount or value involved in any such contravention or five thousand rupees, whichever is higher, as may be adjudged by the Director of Enforcement or any other officer of Enforcement not below the rank of an Assistant Director of Enforcement specially empowered in this regard by the Central Government. 3. Alleging failure to furnish Exchange Control Copy of the Bill of Entry and thereby contravening Sections 8(3) and 8(4) read with Section 50 of FERA,1973. the Special Director in Enforcement Directorate issued a Memorandum dated 21.5.2002 to the appellant-Company, M/s Raj Solvex Limited as well as i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellate Tribunal, the appellants filed WP (C) No.3353/2008. The said petition came to be dismissed vide order dated 8.9.2010, in view of the pronouncement of the Apex Court in Rajkumar Shivhari Vs. Assistant Collector, Directorate of Enforcement [(2010) 4 SCC 772], taking the view that an order passed by the Appellate Tribunal could only be challenged by way of an appeal under Section 35 of FEMA and a writ petition under Article 226 of the Constitution of India would not be maintainable to challenge such an order. It was also noted in para 2 of the order that the Supreme Court had also granted liberty to the petitioner in such cases to file an appeal within 30 days. After the dismissal of the writ petition, these five appeals have been filed by the company and its surviving Directors. 7. The first question which arises for consideration is as to whether the appeals before this Court are barred by limitation prescribed in Section 35 of FEMA or not. The aforesaid Section prescribes a period of 60 days from the communication of the decision of the Appellate Tribunal for filing an appeal to this Court, but this Court can condone the delay in filing an appeal for a further period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants on account of their bonafidely pursuing the remedy of the writ petition before this Court, the appeal would be then within limitation since the prescribed period of limitation is 60 days. The learned senior standing counsel, on the other hand, submits that the order passed by the Appellate Tribunal was in the knowledge of the appellants even prior to the date 11.04.2008, as would be evident from an inspection application filed by their counsel before the Appellate Tribunal on 16.11.2007. It is also the submission of the learned senior standing counsel for the respondent that the presence of the learned counsel for the appellant has also been recorded in the order passed by the Appellate Tribunal. 9. As regards the presence of the counsel for the appellants being recorded in the order of the Appellate Tribunal, nothing really turns on that since it is an admitted position that the order was not dictated in an open hearing, was reserved by the Tribunal and came to be announced at a later date. Obviously, when an order is reserved and pronounced at a later date, the presence recorded in the order is of the counsel who filed/argued the matter and not of the counsel who are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they had filed in this Court. There is a specific averment to this effect in para 18 of the writ petition. In corresponding paragraph of the counter-affidavit to the writ petition, there is no denial of the assertion that the aforesaid order was received by the appellant Shri Raj Kumar Gupta, by post, on 11.04.2008. Moreover, this is not the case of the respondent in any of the proceedings that the aforesaid order of the Tribunal was actually dispatched to the appellants, more than one week or so before 11.04.2008. In fact, the response given by the respondent in the writ petition, the response in these appeals as well as in the response to the application for condonation of delay, the respondents do not even say on which particular date the Tribunal had dispatched the order which Shri Raj Kumar Gupta claims to have received on 11.04.2008. In these circumstances, there would be no reason, not to accept the plea taken by the appellants that the aforesaid order was received by Shri Raj Kumar Gupta by post only on 11.04.2008. 12. If the benefit of Section 14 of Limitation Act which in view of the decision of the Apex Court in Raj Kumar Shivhare (supra) is available to the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following view was taken: 42. 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. 43. Under FEMA, an appeal lies to the appellate tribunal constituted under that Act and Section 19(2) provides that every appeal shall be filed within 45 days from the date on which a copy of the order of the adjudicating authority is received. The appellate is however empowered to entertain appeals filed after the expiry of 45 days if it is satisfied that there was sufficient cause for the delay in filing the appeal. 44. Though both Section 52(2) of FERA and Section 19(2) of FEMA provide a limitation of 45 days and also give the discretion to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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