A.K. Pathak, J. - (1.) BY these appeals Appellants have assailed a common order dated 24th March, 2008 passed by the Appellate Tribunal for Foreign Exchange (for short hereinafter referred to as "Tribunal") in Appeal Nos. 16/2008 to 20/2008. All the appeals are being disposed of together as not only the facts, but the question of law involved therein is same.
(2.) VIDE order dated 11th October, 2007 adjudicating authority i.e. office of Special Directorate of Enforcement, had held M/s Opera House Exports Ltd. and its directors (Appellants) guilty of contravention of provisions of Section 18(2) and 18(3) of the Foreign Exchange Regulation Act, 1973 (for short hereinafter referred to as "FERA"). Penalty of Rs. 50 lakhs was imposed on M/S Opera House Exports Ltd. and that of Rs. 5 lakhs each on its directors (Appellants before this Court). Appellants being aggrieved by the order of the adjudicating authority preferred appeals under Section 19(2) of the Foreign Exchange Management Act, 1999 (for short hereinafter referred to as "FEMA") bearing Nos. 17/2008, 18/2008, 19/2008 and 20/2008 before the Tribunal. Tribunal has held that since the adjudicating order had been passed under the provisions of Section 51 of the FERA and the penalty was imposed under Section 40 of the FERA, remedy of appeal available to the Appellants was under the FERA alone in view of Section 49(4) of the FEMA. Thus, the appeals were treated under Section 52 of the FERA and dismissed being barred by time. It was observed that the adjudication order was passed on 11th October, 2007. Appeals were preferred before the Tribunal on 4th February, 2008 i.e. beyond the period of 90 days. Sub -Section 2 of Section 52 of the FERA provided that Appellate Forum may entertain any appeal filed after expiry of 45 days but not after 90 days if it is satisfied that the Appellant was prevented by sufficient cause from filing the appeal against the adjudication order. Accordingly, Tribunal was of the view that it could not have condoned delay beyond the period of 90 days. Since appeals had been preferred beyond the period of 90 days the same were liable to be dismissed. The operative portion of the impugned order reads as under: 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. This 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. 13. For the reason stated herein above, these appeals are dismissed. These appeals may be consigned to record room 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 the delay beyond the period of 90 days?
(3.) FEMA was enacted on 1st June, 2000 as a result whereof, FERA stood repealed. It is an admitted position. Section 49 of FEMA contains several clauses which reads as under: 49 (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 vacate their respective offices and no such Chairman or other person shall be entitled to claim any compensation for the premature termination of the term of his office or of any contract of service. (3) Notwithstanding anything contained in any other law for the time being in force, no court shall take cognizance of an offence under the repealed Act and no adjudicating officer shall take notice of any contravention under Section 51 of the repealed Act after the expiry of a period of two years 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 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 prevented by sufficient cause from filing the appeal within the said period. (6) Save as otherwise provided in Sub -section (3), the mention 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, 1897 (10 of 1897 ) with regard to the effect of repeal.;