AGIO EXPORTS LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS appeal has been preferred under Section 35 of the Foreign Exchange management Act, 1999 against the order of Foreign Exchange Appellate Tribunal dated 28th March, 2007. The order reads as under :-

(2.) A perusal of the order would show that on 28th March, 2007 when the application of appellant for calling witnesses for cross examination was taken up, only the Advocate for the appellant appeared. The respondent was not represented at that time. The Tribunal observed that the issues raised by the appellant in the application can be decided only after hearing the appeal on merits. There was no one to represent the respondent and the appeals were adjourned for hearing on 23rd July, 2007.

(3.) THE Appellate Tribunal even at the time of deciding the application is supposed to hear both the parties and cannot decide the application without hearing the opposite party. Moreover, Appellate Tribunal has not dismissed the application but merely observed that the issue raised in the application can be decided only after hearing the appeal on merits. Learned counsel submitted that if the application is decided after the appeal, the application would become infructuous. The application of the appellant should be decided before decision of the appeal. The counsel drew my attention to Section 53 of FERA, which prescribed powers of the Appellate Tribunal. The corresponding Section 28 of fema which provides that the Appellate Tribunal shall not be bound by the procedure laid down by CPC but shall be guided by principles of natural justice and subject to other provisions of the Act, the Appellate Tribunal shall have power to regulate its own procedure. Since the proceedings before Appellate tribunal are under FEMA and not under FERA, provisions of FEMA shall be applicable. Section 28 (2)of FEMA provides that Appellate Tribunal shall have same powers as vested in Civil Court under CPC while trying a suit in respect of following matters :