Case Note & Summary
The Union of India, through the Directorate of Enforcement, filed a Civil Application seeking condonation of 291 days delay in filing an appeal against an order dated 18/8/2009 passed by the Appellate Tribunal for Foreign Exchange. The Tribunal had set aside a penalty of Rs.7 crores imposed by the Special Director under Section 50 of the Foreign Exchange Regulation Act, 1973 (FERA) read with Section 13(1) of the Foreign Exchange Management Act, 1999 (FEMA). The applicant argued that the appeal was filed under Section 54 of FERA read with Section 49(5)(c) of FEMA, and that the High Court had power to condone any delay upon showing sufficient cause. The respondent opposed the application, contending that the limitation period under Section 54 of FERA was 60 days and the High Court could not condone delay beyond that period. The court examined the relevant provisions: Section 54 of FERA provides for an appeal to the High Court within 60 days from the date of communication of the order, with a proviso allowing condonation of delay if sufficient cause is shown, but only if the appeal is filed within that 60-day period. Section 49(5)(c) of FEMA saves the right to appeal against orders under FERA but does not extend the limitation period. The court held that the appeal against the order of the Appellate Tribunal (constituted under FEMA) is governed by Section 54 of FERA, which prescribes a limitation of 60 days. Since the appeal was filed beyond 60 days, the High Court had no power to condone the delay. The court dismissed the Civil Application, noting that the delay of 291 days could not be condoned as the limitation period had expired.
Headnote
A) Limitation - Appeal under FERA Section 54 - Condonation of Delay - The High Court cannot condone delay beyond 60 days in an appeal under Section 54 of FERA, as the proviso to Section 54 only empowers condonation of delay if the appeal is filed within the period of 60 days from the date of communication of the order. The court held that the limitation period is 60 days and the High Court has no power to condone delay beyond that period. (Paras 1-10) B) Foreign Exchange Law - Repeal and Savings - Section 49(5)(c) of FEMA - The provision that appeals against orders under FERA may be filed within the period specified in FERA does not extend the limitation period. The court held that Section 49(5)(c) of FEMA merely saves the right of appeal but does not empower the High Court to condone delay beyond the period specified in FERA. (Paras 5-10) C) Appellate Tribunal - Jurisdiction - The Appellate Tribunal under FEMA is not the same as the Appellate Board under FERA, and appeals against its orders are governed by the limitation period under FERA Section 54, not FEMA. The court held that the appeal against the order of the Appellate Tribunal is governed by Section 54 of FERA, which provides a limitation of 60 days. (Paras 3-8)
Issue of Consideration
Whether the High Court has the power to condone delay beyond 60 days in an appeal filed under Section 54 of FERA read with Section 49(5)(c) of FEMA, when the appeal is against an order of the Appellate Tribunal constituted under FEMA?
Final Decision
Civil Application dismissed. The court held that the appeal against the order of the Appellate Tribunal is governed by Section 54 of FERA, which provides a limitation of 60 days. The High Court has no power to condone delay beyond that period. The delay of 291 days cannot be condoned.
Law Points
- Limitation period for appeal under FERA Section 54 is 60 days
- High Court cannot condone delay beyond that period
- FEMA Section 49(5)(c) does not extend limitation
- Appellate Tribunal under FEMA is not the same as Appellate Board under FERA
