IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION FEMA APPEAL NO.5 OF 2008 FEMA APPEAL NO.5 OF 2008 FEMA APPEAL NO.5 OF 2008 M/s.Enkay Texofood Industries Ltd. ..Appellant. V/s. Enforcement Directorate, Mumbai ..Respondent. Mr.K.R.Bhulchandani with Tulsi Javeri i/b. M/s. Kamal & Co. for appellant. Mr.Y.A.Bhate for respondent. CORAM : SMT.RANJANA DESAI AND CORAM : SMT.RANJANA DESAI AND CORAM : SMT.RANJANA DESAI AND J.P.DEVADHAR, JJ. J.P.DEVADHAR, JJ. J.P.DEVADHAR, JJ. DATED : 14TH JANUARY, 2009. DATED : 14TH JANUARY, 2009. DATED : 14TH JANUARY, 2009. P.C. :- P.C. :- P.C. :- 1. Appellant is a registered public limited company engaged in the business of export and local sale of fruit pulp and fruit juice. The case of the appellant is that a memorandum was issued by the respondent on 16/5/2002 under FERA / FEMA (the Foreign Exchange Regulation Act, 1973 & the Foreign Exchange Management Act, 1999 respectively) alleging that the appellant has not produced the evidence of import. The appellant replied to the memorandum on 13/7/2004 and 16/9/2004 and submitted the supporting documents of import. Two orders dated 7/1/2005 were passed by the adjudicating officer levying penalty of Rs.1,39,57,582/- and Rs.67,00,065/-. On 20/5/2005 two - = : 2 : = - demand notices were received by the appellant for payment of penalties. Being aggrieved by the said notices, the appellant filed two separate appeals before the appellate tribunal. Both the appeals were dismissed by the ap pellate tribunal by a common order on 31/7/2008 on the ground that the appeals were preferred after a period of 90 days and the delay could not be condoned under section 52(2) of FERA and the condonation of delay cannot be considered under section 19(2) of the FEMA. Being aggrieved by the said order, the appellant has preferred this appeal. 2. We have heard learned counsel for the parties. Learned counsel for the appellant has drawn our attention to the order dated 8th October, 2008 passed by the Division Bench of this Court to which one of us (J.P.Devadhar, J.) was a party in Fera Appeal No.53 of 2008 along with Civil Application No. 3510 of 2008 in the case of Rajesh Mhatre V/s. The Special Director, Directorate of Enforcement, Mumbai & Ors. 3. In that case the order imposing penalty was passed on 27/1/2005. Being aggrieved by that order the appellant therein preferred appeal before the tribunal under section 52 of the FERA r/w. section 19 of FEMA along with application for condonation of - = : 3 : = - delay. The tribunal, relying on the provisions of section 52 of FERA without referring to the provisions of section 19 of FEMA held that it has no power to condone the delay and dismissed the appeal as barred by limitation. The said order was challenged in this Court. This Court observed that the tribunal could not have ignored the provisions of section 19 of FEMA. This Court therefore set aside the tribunal’s order and remitted the matter to the tribunal for de novo consideration and decision on merits in accordance with law. Thus, this Court in the facts of that case held that to the appeal filed under section 52(2) of FERA, section 19 of FEMA would be applicable. Learned counsel for the parties are agreed that to the facts of this case the judgment in Rajesh Mhatre’s case would be applicable. 4. Learned counsel for the appellant has pointed out that the tribunal has held that the Limitation Act does not apply to the appeal under FERA / FEMA. In this connection, learned counsel has drawn our attention to the Full Bench decision of this Court in the Notice of Motion No.1485/2008 in Central Excise Appeal (L) No.88/2008 [The Commissioner of Central Excise V/s. M/s.Shree Rubber Plast Co.Pvt.Ltd.] along with other connected matters decided on 19/12/2008 wherein the Full Bench after considering relevant - = : 4 : = - judgments on the point held that the power to condone the delay in filing the appeal must be held to be existing unless there is a clear indication of its exclusion by implication. 5. In view of this, in our opinion, in the facts of this case the proper course would be to set aside the impugned order and remand the matter to the tribunal with direction to the tribunal to consider the matter afresh in the light of the order of this Court in Rajesh Mhatre’s case (supra) and the Full Bench Judgment of this Court in M/s.Shree Rubber Plast Co. Pvt. Ltd.’s case (supra). Order accordingly. 6. Tribunal shall consider the matter afresh within a period of 6 weeks from the date of receipt of this order by it. 7. We make it clear that we have not touched the merits of the case and as to whether the delay should be condoned or not should be decided by the tribunal independently and in accordance with law. 8. Appeal is disposed of in above terms with no order as to costs. (SMT.RANJANA DESAI, J.) (SMT.RANJANA DESAI, J.) (SMT.RANJANA DESAI, J.) - = : 5 : = - (J.P.DEVADHAR, J.) (J.P.DEVADHAR, J.) (J.P.DEVADHAR, J.)