Kartik K. Parekh v. Appellate Tribunal for Foreign Exchange & Ors

Mr. Zal Andhyarujina i/b. Juris Matrix for appellant. Mr. Yusuf Muchala, senior Advocate with Vaibhav Nagvekar and Rohit Pandey i/b. Dhiren H. Shah for respondents. 2 cay157-10+2 ORAM : J.P. DEVADHAR AND MRS. MRIDULA BHATKAR, JJ. DATED : 18TH FEBRUARY, 2011 P.C. :-

1. These three Civil Applications are filed seeking condonation of delay in filing appeals against the order passed by the Appellate Tribunal for Foreign Exchange on 02/08/2007.

2. By order in original dated 30/1/2006 penalty was imposed upon the appellants for violation of the provisions of the Foreign Exchange Management Act, 1999 ('FEMA' for short). On filing appeal, the Appellate Tribunal for Foreign Exchange by its order dated 2/8/2007 directed the appellants to make a pre-deposit of 50% of the amount of the penalty within a period of 30 days from the date of the receipt of the said order.

3. Challenging the aforesaid order, the appellants filed Writ Petitions in the Delhi High Court on 7/11/2007. The said Writ Petitions were initially admitted and ultimately dismissed on 26/7/2010 in the light of the judgment of the Apex Court in the case of Rajkumar Shivhare V/s. Assistant Director of Enforcement and Anr. reported in (2010) 4 Supreme Court Cases 772. However, while dismissing the Writ Petitions, the Delhi High Court granted liberty to the appellants to avail 3 cay157-10+2 appropriate remedy in terms of para 45 of the judgment of the Supreme Court in the case of Rajkumar Shivhare (supra), which reads as under:- "45. In view of this Court's jurisdiction under Article 136 of the Constitution, we give liberty to the appellant, if so advised, to file an appeal before an appropriate High Court within the meaning of the Explanation to Section 35 of FEMA and if such an appeal is filed within a period of thirty days from today, the appellate forum will consider the question of limitation sympathetically having regard to the provisions of Section 14 of the Limitation Act and also having regard to the fact that the appellant was bona fide pursuing his case under Article 226 of the Constitution before the Delhi High Court and then its appeal before this Court. "

4. Accordingly, the present appeals are filed on 27/8/2010 with the Civil Applications seeking condonation of delay in filing the appeals.

5. Section 35 of the FEMA Act which provides for a remedy of appeal against the order of the Appellate Tribunal reads thus:- " 35. Appeal to High Court-- Any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any question of law arising out of such order: Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal 4 cay157-10+2 within the said period, allow it to be filed within a further period not exceeding sixty days. Explanation-- In this section "High Court" means-- (a) the High Court within the jurisdiction of which the aggrieved party ordinarily resides or carries on business or personally works for gain; and (b) where the Central Government is the aggrieved party, the High Court within the jurisdiction of which the respondent, or in a case where there are more than one respondent, any of the respondents, ordinarily resides or carries on business or personally works for gain.

6. Admittedly, the appeal is filed beyond 120 days from the date of communication of the order of the Appellate Tribunal. The question is, whether under Sections 35 of FEMA, this Court can condone the delay in filing the appeal beyond the period of 120 days ?

7. Interpreting similar provision contained in Section 35H of the Central Excise Act, the Apex Court in the case of Commissioner of Customs & Central Excise V/s. Hongo India Pvt. Ltd. reported in (2009) 5 SCC 791, held that the High Court has no power to condone delay beyond the period specified in the Central Excise Act. Similar view is taken by the Apex Court in the case of Chaudharana Steel (P) Ltd. V/s. CCE reported in 238 ELT 705 (SC). Therefore, the delay in filing the appeals beyond the period of 120 days under Section 35 of FEMA 5 cay157-10+2 cannot be condoned by this Court. To overcome the aforesaid decisions, the legislature has amended the Central Excise Act and the Customs Act retrospectively so as to confer power on the High Court to condone the delay. No such amendment is introduced under FEMA, hence this Court cannot condone the delay in filing the appeal beyond the period prescribed under Section 35 of FEMA.

8. It is, however contended that the Delhi High Court while dismissing the Writ Petitions on 26/7/2010 has given liberty to the appellants to file appeals in terms of para 45 of the judgment of the Apex Court in the case of Rajkumar Shivhare (supra). As noted earlier, in the case of Rajkumar Shivhare (supra), the Apex Court in exercise of its power under Article 136 of the Constitution gave liberty to file 'an appeal within a period of thirty days from today.' Whether the Delhi High Court could exercise such power exercised by the Apex Court under Article 136 of the Constitution, is a debatable question. In any event, the expression 'within thirty days from today' means within thirty days of passing the order. Delhi High Court passed the order on 26/07/2010 and, therefore, the appeals ought to have been filed within thirty days from 26/7/2010. Since the appeals are filed beyond the period permitted by the Delhi High Court, this Court cannot condone the delay.

9. The argument that the expression 'within thirty days from 6 cay157-10+2 today' in para 45 of the judgment in the case of Rajkumar Shivhare (supra) must be construed to mean within thirty days of the appellant receiving the order cannot be accepted, because, the decision was rendered in the open Court by the Delhi High Court on 26/07/2010 when the parties were represented by the respective Advocates. In such a case, the expression 'today' would obviously means from the day on which the order was made i.e. on 26/7/2010. Since the appeals have been filed beyond thirty days from 26/7/2010, this Court has no power to condone the delay.

10. In these circumstances, we have no option but to dismiss the Civil Applications filed by the appellants seeking condonation of delay in filing appeals. Accordingly, the Civil Applications are dismissed with no order as to costs. Consequently, the Appeal papers be consigned to record. (MRS. MRIDULA BHATKAR, J.) (J.P. DEVADHAR, J.)