JITENDER KUMAR Vs. UNION OF INDIA AND ANR.

JUDGEMENT

(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:

(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 FEMA was enacted on 1st June, 2000 as a result whereof, FERA stood repealed.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: