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Union of India Versus Shri Yogesh Mehta And Another, Sh. Hemal Thakkar

2017 (12) TMI 396 - BOMBAY HIGH COURT

Revisional jurisdiction under the FERA - Notice of contravention of Section 51 of FERA was taken by the Adjudicating officer within two years from the date of the repeal of FERA - Held that:- In the facts of the present case, the appellant is not without a remedy in the sense that a recourse can be taken to the remedies under the Constitution of India. The principle which governs Mimansa interpretation is that if a word or sentence purporting to express a subordinate idea clashes with the princi .....

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ase, we are dealing with the revisional jurisdiction. As in case of an appeal, a revision is always creation of a Statute. There is no inherent power vesting in any appellate authority or superior authority to exercise the power of revision. Moreover, the remedy of revision is never as matter of right. Mimansa principles will not revive a nonexisting remedy of revision. Therefore, we cannot accept the submission made by the learned Counsel appearing for the appellant based on Mimansa principles. .....

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b. Aksar Law for the respondent JUDGMENT ( Per A. S. Oka, J. ) 1. The submissions of the learned counsel were heard on the earlier date. For the sake of convenience, with a view to understand the controversy, we refer to the facts of Appeal No.4/2016. The issue involved in both the Appeals is of maintainability of revision applications filed by the Enforcement Directorate of the appellant before the Appellate Tribunal for Foreign Exchange (for short Appellate Tribunal ). On 31st May 2002, the Sp .....

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tor of Enforcement dropped all the charges against the respondents. Being aggrieved and dissatisfied by the said order, the appellant purported to file a revision application before the Appellate Tribunal established under section 18 of the Foreign Exchange Management Act, 1999 (for short FEMA ). We may note that FEMA came into force from 1st June 2000. By virtue of Sub-Section (1) of Section 49 of FEMA, FERA was repealed. Sub-Section (1) further provides that the Appellate Board constituted und .....

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He invited our attention to the provision of Sub-Section (4) of section 52 of the FERA which confers a power on the Appellate Board established under the FERA to call for record and proceedings for the purpose of examining the legality, propriety or correctness of any order made by the Adjudicating Officer section 50 read with Section 51 of FERA. He invited our attention to Section 49 of the FEMA by which FERA was repealed. In particular, he invited our attention to Sub-Section (3) of section 49 .....

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ondents on the basis of the memorandum dated 31st May 2002 and the order of adjudication was made on 17th June 2010. Inviting our attention to Sub-Section (5) of section 49 of FEMA, he pointed out that any appeal pending before the Appellate Board under FERA on the date of repeal of FERA is required to be transferred to the Appellate Tribunal constituted under FEMA. He pointed out that the very fact that Sub-Section (3) of Section 49 of FEMA permits an action to be taken on account of violation .....

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nviting our attention to Section 6 of the General Clauses Act, the learned counsel appearing for the appellant would submit that the remedy of revision under FEMA is protected. 5. He invited our attention to the decision of the Apex Court in the case of Ispat Industries Ltd. v. Commissioner of Customs, Mumbai 2006 (202) ELT (SC). Without prejudice to his earlier contentions, he submitted that Mimansa principle of interpretation will have to be applied in the present case. He submitted that appli .....

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ied upon another decision of the Apex Court in the case of Craft Interiors Pvt.Ltd. v. Commissioner of C.Ex., Bangalore 2006 (203) ELT 529 (SC). 6. The learned counsel appearing for the respondent supported the impugned judgment and order. He submitted that the remedy of revision is by way of procedure and it is never as a matter of right. He relied upon the decision of the Apex Court in the case of Shiv Shakti Coop. Housing Society v. Swaraj Developers (2003) 6 SCC 659. 7. We have carefully con .....

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ection 49 of FEMA reads thus: 49. Repeal and saving.( 1) The Foreign Exchange Regulation Act, 1973 (46 of 1973) is hereby repealed and the Appellate Board constituted under Sub-Section (1) of section 52 of the said Act (hereinafter referred to as the repealed Act) shall 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 .....

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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, confirmation or declaration made or any lic .....

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ll 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 .....

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propriety and correctness of any order made by the Adjudicating Authority under section 16 of FEMA. 8. In the present case, notice of contravention of Section 51 of FERA was taken by the Adjudicating officer within two years from the date of the repeal of FERA. 9. Before we deal with the submissions, we must note the distinction between an appeal and a revision. A full bench of this Court in the case of Bhartiben Shah vs. Gracy Thomas and Others 2013 SCC OnLine Bom 98 had an occasion to deal wi .....

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the Superior Court. That is why Sub-Section (1) of section 34 provides that an appeal shall lie from a decree or order made by the Court of Small Causes to a Bench of two Judges of the said Court but Sub-Section (4) of the same section (like section 115 of the CPC) does not say that a revision shall lie from an order of the Small Causes Court. Section 34(4), like section 115 of Civil Procedure Code merely enables the superior Court to call for the record of a subordinate Court and make such ord .....

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the law on the date of institution, he has no vested right of revision since revision is not a continuation of suit and relates to procedural law. [District Judge Jabalpur v. Krishna Deo Singh, 1995 AIHC 2404, M. P. High Court as cited in Code of Civil Procedure by Justice C. K. Thakker, 2002 Edition, Vol. 2, pp.652653, 665]. (underlines supplied) 10. The full Bench has made a distinction between appellate jurisdiction and revisional jurisdiction. It is held that provisions conferring appellate .....

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atena of decisions which hold that a right of appeal is vested in a litigant on the day on which a lis is filed. A remedy of revision is thus never as a matter of right. 11. Now coming back to the repealing Section which is Section 49 of FEMA, emphasis is laid by the learned Counsel for the appellant on Sub-Section (3). There may be cases where there is a violation of FERA a day or few days prior to its repeal. Sub-Section( 3) of Section 49 is an enabling provision which says that within a perio .....

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repeal, the said appeal shall stand transferred to and shall be disposed of by the Appellate Tribunal constituted under FEMA. Clause (c) of Sub-Section 5 of Section 49 of FEMA provides that if any appeal is disposed of by Appellate Board under the repealed Act before its repeal and if an appeal is not filed against the decision before the commencement of FEMA, within 60 days from the date of commencement, an appeal can be filed in this Court. The appeal provided under the FERA which is protecte .....

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) of Section 49 of FEMA, it is provided that mentioning of particular matters in Sub-Sections (2), (4) and (5) shall not be held to prejudice or affect the general application of Section 6 of the General Clauses Act. On this aspect, the learned Counsel appearing for the respondent relied upon a decision of the Apex Court in the case of Shiv Shakti Coop Housing Society (supra) wherein the Apex Court was dealing with the amendment carried out to Section 115 of the Code of Civil Procedure,1908 by t .....

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ction 6 of the General Clauses Act has no application because there is no substantive vested right available to a party seeking revision under Section 115 of the Code. In Kolhapur Canesugar Works Ltd. vs. Union of India it was observed that if a provision of statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, there is no scop .....

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ed that the intention of the legislature is that the pending proceedings shall continue but a fresh proceeding for the same purpose may be initiated under the new provision. (underline supplied) In the said decision, the Apex Court relied upon its earlier decision in the case of Kolhapur Canesugar Works Ltd. vs. Union of India (2000) 2 SCC 536 : air 2000 SC 811 in which the Apex Court had an occasion to consider Section 6 of the General Clauses Act. The Apex Court in so many words held that in a .....

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Legislature has not chosen to save even the pending revision applications. In a case where adjudication is initiated under Sub-Section (3) of Section 49 after the repeal of FERA, the remedy of an appeal against order of adjudication under the repealed Act is not saved. Under FEMA,there is a provision of revision under Sub-Section (6) of Section 19, but the revisional powers have been entrusted to the Appellate Tribunal constituted under FEMA and the power is confined to the order of the Adjudica .....

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