TMI Blog2022 (12) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Authorized Officer has to be approved by the Competent Authority and the order of the Competent Authority has to be evaluated by the Tribunal under Section 37A(5) of the FEMA Act, as against which, the aggrieved person can prefer an appeal before the High Court. This kind of hierarchy of forums provided for the parties to redress their grievances cannot be permitted to be omitted, which would result in loss of chance to the other party to invoke the appeal remedy before the other forum. This Court has no hesitation to hold that, since the Tribunal has been functioning with the Chairman from 26.09.2022, the petitioner can prefer an appeal before the Tribunal against the impugned orders and in this regard, this Court feels that some reasonable time, i.e., 45 days, can be granted to the petitioner department to prefer an appeal before the Tribunal. The learned Senior Counsel appearing for the contravener, on instructions, given an undertaking before this Court that, the alleged contravener would not encumber or meddle with the subject properties of the attachment orders, which are impugned herein. Order - Since the petitioner department can very well file an appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment had issued summons initially on 09.03.2021, which, according to the petitioner, was not responded by the alleged contravener. Therefore, it necessitated the petitioner department to issue a notice on 07.06.2021 and even to this notice, no response has been given by the alleged contravener. 7. Thus, by invoking the power under Section 37A(1) of the FEMA Act, the Authorized Officer of the department passed an order on 27.12.2021 in respect of the first case, where only the shares of the alleged contravener have been attached in the Company which is running in India. In respect of the second case, the Authorized Officer passed an order on 30.03.2022, where the shares as well as some immovable properties of the alleged contravener were attached. 8. The attachment orders passed by the Authorized Officer under Section 37A(1) of the FEMA Act were set aside by the Competent Authority on 13.04.2022 in respect of W.P.No.13114 of 2022 and on 25.07.2022 in respect of W.P.No.25098 of 2022. 9. These two orders passed by the Competent Authority are under challenge respectively in these writ petitions. 10. It is pointed out by Mr.B.Kumar, learned Senior Counsel appearing for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of this Court under Article 226 of the Constitution of India. However, only on considering the merits of the case, this Court had granted interim orders of stay in respect of these two writ petitions and by virtue of the interim orders granted, the orders passed by the Authorized Officer under Section 37A(1) of the FEMA Act are restored. Therefore, the petitioner department's interest is protected as of now. Otherwise, the alleged contravener may meddle with the shares as well as the immovable properties, which are the subject matters of these two writ petitions, he contended. 14. The learned Special Public Prosecutor would also submit that, while passing the impugned orders, the Competent Authority has not considered the plea raised by the petitioner department and in this regard, since no consideration has been shown by the Competent Authority, it can only be construed as an order passed without following the principles of natural justice and on that ground, even without exhausting the appeal remedy, the petitioner department can straight away approach this Court by moving these writ petitions. 15. The learned Special Public Prosecutor would further contend that, fili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal, as it is within the limitation only. In this regard, if the petitioner department wants some more time to prefer appeals in the prescribed format, the same can also be granted by this Court by extending the limitation of 45 days to a reasonable period. 21. The reason for this Court to come to such a conclusion to drive the petitioner department to go before the Tribunal is that, as against the order to be passed by the Appellate Tribunal, further appeal remedy is also provided under the Act in Section 35 of the FEMA Act, where any person aggrieved against an order or decision of the Appellate Tribunal may prefer an appeal to the High Court within a period of 60 days from the date of communication of the appeal order. 22. Therefore, the parties aggrieved against the order to be passed by the Tribunal can very well invoke the further appeal provision under Section 35 of the FEMA Act to prefer an appeal to the High Court. Therefore, instead of filing a second appeal, the petitioner has taken the route of filing the appeal by way of these two writ petitions, which is not acceptable. 23. Thus, the very remedy available to both the parties to go before the Appellate Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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