By TIOL News Service

MUMBAI, FEB 17, 2012: THE Civil Application has been filed for condoning a delay of 570 days in filing an appeal against an order dated 30 September 2008 passed by the Appellate Tribunal for Foreign Exchange.

The Foreign Exchange Regulation Act, 1973 (FERA , 1973) was repealed on 1 June 2000. Under the sunset provision incorporated in sub section (3) of Section 49 of the Foreign Exchange Management Act, 1999 (FEMA, 1999), a period of two years was prescribed for taking cognizance of an offence under the repealed Act and for taking notice of any contravention under Section 51 of the repealed Act.

In the present case, a notice to show cause was issued to the Respondent for a violation of the provisions of the FERA , 1973 on 27 July 2001. By an order dated 30 October 2003, the Special Director in the Directorate of Enforcement, Mumbai, adjudicated upon the notice to show cause and did not impose any penalty upon the Respondent. A revision was filed by the Union of India to the Appellate Tribunal for Foreign Exchange constituted under the provisions of the FEMA, 1999. The Appellate Tribunal dismissed the revision on 30 September 2008. The admitted position is that the Appellant received a communication of the order passed by the Tribunal on 24 November 2008.

The appeal before the High Court has been filed on 6 August 2010.

There is a delay of 570 days in filing the appeal. The issue is as to whether that delay can be condoned.

Section 49 of the FEMA, 1999 provides that the FERA, 1973 stands repealed and the Appellate Board constituted under Section 52 (1) of the repealed Act stands dissolved. However, a sunset provision was made in sub Section (3) of Section 49 in order to enable cognizance of offences to be taken and for notice of contraventions of the repealed Act within a period of two years from the commencement of the new Act. Under subsection (5) of Section 49, it has been inter alia stipulated that an appeal preferred to the Appellate Board under subsection (2) of Section 52 of the repealed Act, but not disposed of before the commencement of the new Act would stand transferred to the Appellate Tribunal constituted under the new Act.

Upon the enactment of the FEMA, 1999, the Appellate Board constituted under the FERA, 1973 stood dissolved. An appeal against an order of adjudication passed for violation of the provisions of the FERA , 1973 has to be filed upon the enactment of the FEMA, 1999 to the Appellate Tribunal under Section 19 where the appeal arises out of an order of adjudication passed by the Special Director. Against an order passed by the Appellate Tribunal, an appeal lies before the High Court under Section 35 of the FEMA ,1999. Section 35 stipulates that the appeal has to be filed within sixty days from the date of communication of the decision of the Appellate Tribunal. Under the proviso to Section 35, the High Court is empowered upon sufficient cause being shown to condone a delay not exceeding a period of sixty days. In other words, no appeal can be filed beyond the outer limit of 120 days from the date of communication of the order of the Tribunal, before the High Court. The appeal which has been filed in August 2010 is clearly beyond the outer limit of 120 days and is, therefore, not maintainable.

Held: The High Court does not have any jurisdiction to condone a delay in excess of sixty days beyond the period of sixty days prescribed for the filing of an appeal. The delay of 570 days in filing an appeal before this Court under Section 35 of the FEMA, 1999 cannot be condoned. The Civil Application is accordingly dismissed.

(See 2012-TIOL-126-HC-MUM-FEMA in 'FEMA')