TMI Blog2015 (1) TMI 929X X X X Extracts X X X X X X X X Extracts X X X X ..... .P. Mavi, Ashutosh Dubey, H. Sharma, Abhishek Chodhan and P.N. Puri, Advocates For The Respondent : K. Radhakrishnan, Sr. Adv. Ms. Sunita RaniA. Radhakrishnan, Naveen Kumar, Sidhartha Panda and B. Krishna Prasad, Advocates JUDGMENT Sudhansu Jyoti Mukhopadhaya, J. - Leave granted. 2. These appeals are directed against the common judgment dated 9th February, 2011 passed by the High Court of Delhi at New Delhi in Criminal Appeal No.342 of 2009 etc. By the impugned judgment, the High Court dismissed the appeals preferred by the appellants herein and upheld the order passed by the Appellate Tribunal for Foreign Exchange (hereinafter referred to as the, 'Tribunal') on the ground that the appeals were filed beyond the period of 90 days from the date of service of adjudication order. 3. The factual matrix of the case is as follows: The State Bank of India, Okhla Industrial Area, New Delhi by its XOS statement dated 21.01.1995 disclosed that the appellant-M/s Opera House Exports Ltd., D-12/2, Okhla Industrial Area, Phase-II, New Delhi (hereinafter referred to as the, 'Company') did not realize substantial amount of its export bills and that the bills ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether with copies of relevant GR's. It was alleged that number of opportunities had been provided to the Company and its representatives to appear personally and explain the reasons for the outstanding export bills, steps taken for realization of the pending proceeds etc. But the Company did not avail those opportunities and failed to furnish any information. The SBI, Okhla Industrial Area, New Delhi by its XOS statement dated 30.08.2000 revealed that US$ 109353.88, Italian Lira 5952000, DM.2738842.85, FR.F.573129, UK Pounds 3302 and CHF.4354 equivalent to ₹ 1,38,09,274/- was pending realization on account of exports made by the Company during the period from 1991 to 1998. The Company was given number of opportunities but did not furnish any evidence or explanations for having taken any steps for realization of the said export bills. Further, no correspondence was furnished for having taken any steps for obtaining extension from RBI for delay in realization of the proceeds. It was, therefore, found that the Company had contravened the provisions of Section 18(2) read with Central Government Notification Nos.F.I/67/EC/73-1 3, both dated 1.1.1974 and Section 18(3) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22.4.2010 admitted the matters and issued notice. Thereafter, the High Court by impugned common judgment dated 9th February, 2011 dismissed the same on the ground of limitation. Hence, this appeal. 7. The Tribunal was of the opinion that in view of sub Section (2) of Section 52 of the FERA, the delay beyond the period of 90 days cannot be condoned. The Tribunal dismissed the appeal with following observation: 12. In the light of above discussions, these appeals when filed 90 days from the date of receipt of the impugned order has to be dismissed. The Tribunal is a creature of statute. Therefore, this Tribunal cannot act beyond the statutory provisions. As a result the delay of exceeding period of 90 days cannot be condoned in view of legislative mandate couched in clear language. 8. The High Court in an appeal filed by the appellants framed the following issues: 3. In the above facts, the questions of law which needs to be redressed are (a) whether the appeals before the Tribunal against the order of the adjudicating authority dated 11th October, 2007 had to be treated by the Tribunal under the provisions of FERA or FEMA? (b) whether Tribunal has power to condone th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any licence, permission, authorization or exemption granted or any document or instrument executed or any direction given under the Act hereby repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provision of this Act; (b) any appeal preferred to the Appellate Board under sub- section (2) of section 52 of the repealed Act but not disposed of before the commencement of this Act shall stand transferred to and shall be disposed of by the Appellate Tribunal constituted under this Act; (c) every appeal from any decision or order of the Appellate Board under sub- section (3) or sub- section (4) of section 52 of the repealed Act shall, if not filed before the commencement of this Act, be filed before the High Court within a period of sixty days of such commencement: Provided that the High Court may entertain such appeal after the expiry of the said period of sixty days if it is satisfied that the appellant was prev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty was imposed when FEMA was in force. Against the same an appeal was preferred by the appellant. In the said case, the appellant Company preferred an appeal u/s 19(2) of FEMA against imposition of penalty, after about 185 days of imposition of penalty along with application for condonation of delay under proviso to sub Section 19(2) of FEMA. This Court noticed that u/s 52 (2) FERA (repealed Act), a delay upto 90 days only was permissible whereas under Section 19(2) proviso of FEMA there is upper limit for condonation of delay was not prescribed. This Court held: 48. The above discussion will clearly demonstrate that Section 49 of FEMA does not seek to withdraw or take away the vested right of appeal in cases where proceedings were initiated prior to repeal of FERA on 1-6-2000 or after. On a combined reading of Section 49 of FEMA and Section 6 of the General Clauses Act, it is clear that the procedure prescribed by FEMA only would be applicable in respect of an appeal filed under FEMA though the cause of action arose under FERA. In fact, the time-limit prescribed under FERA was taken away under the proviso to sub-section (2) of Section 19 and the Tribunal has been conferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proviso to sub Section (2) of Section 52 to entertain any appeal even after expiry of that period of 45 days but not after 90 days, from the date aforesaid subject to satisfaction that the appellant was prevented by sufficient cause from filing the appeal in time. 16. The impugned order was passed by the Adjudicating Authority on 11.08.2007. It is pleaded on behalf of the appellant and was not disputed by respondents that the said adjudication order was served on the appellant on 25.10.2007. Delay in filing appeal can be computed as follows: From the date of receipt (25.10.2007) of Adjudication order dated 11.10.2007 October, 2007 06 November, 2007 30 December, 2007 31 January, 2008 Appeal filed on 22.1.2008 22 Total No.of days 89 Therefore, we hold that even u/s 52 of FERA the Appellate Board was empowered to condone the delay, as the appeal was filed before 90 days and not later than 90 days. 17.For the reasons aforesaid, we have no other option ..... X X X X Extracts X X X X X X X X Extracts X X X X
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