AGK AGK AGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FERA APPEAL NO.53 OF 2008 ALONG WITH CIVIL APPLICATION NO.3510 OF 2008 Rajesh Mhatre ..Appellant. V/s. The Special Director, Directorate of Enforcement, Mumbai & Ors. ..Respondents. Mr.Anand Sachwani with Mr.Shah i/by Sachwani, Adwani & Heera Shah for the Appellant. Mr.K.R. Chaudhari for the Respondents. CORAM : D.K. DESHMUKH & J.P. DEVADHAR, JJ. DATED : 8TH OCTOBER, 2008. P.C. : 1. The facts that are relevant and material for disposing of this appeal are that : the Special Director passed an order imposing penalty on the Appellant - Rajesh Mhatre which is dated 27-1-2005. Being aggrieved by that order, the appellant preferred appeal before the tribunal under Section 52 of the FERA r/w Section 19 of FEMA. That appeal was registered as Appeal No.551 of 2005. The appellant had filed an application for condonation of delay in filing the appeal. He had also filed an application for dispensing with the predeposit. That application was disposed of by order dated 7-11-2005 passed by the appellate tribunal. That order reads as under : "Shri A.M. Sachwani, advocate for the appellant appeared. Shri A.C. Singh, ALA represented the respondent. Shri Sachwani stated that there is a delay of about 97 days in filing the appeal. It is contended that appellant’s father has been suffering from various ailment. Photo copies of the medical certificates relied on by the appellant have been perused. Delay is condoned. As regards the question of dispensation of pre deposit of penalty amount after considering the circumstances of the case and statutory scheme, the appellant is directed to make pre deposit of 10% of penalty amount within 30 days from today failing which this appeal will be dismissed on this ground alone." 2. It is clear from the above-quoted portion that the delay in filing the appeal was condoned and the order was also made for dispensing with the pre deposit and that application was also disposed of. Thereafter, Appeal No.551 of 2005 was finally disposed by order dated 19-3-2008. Perusal of that order shows that the tribunal forgetting that it had already condoned the delay by order dated 7-11-2005, the tribunal again considered the question of condonation of delay and 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. 3. Thus two things are clear, one as the delay in filing the appeal is condoned, rightly or wrongly, by order dated 7-11-2005, unless and until that order is recalled or set aside by a superior Court, the Appeal No.551 of 2005 could not have been dismissed on the ground that it is barred by limitation. Second thing which is clear is that even assuming that the tribunal had jurisdiction to decide the question of delay, even after passing order dated 7-11-2005, the tribunal could not have ignored the provisions of Section 19 of FEMA. In our opinion, it is clear from the order disposing of the appeal dated 19-3-2008 which is impugned in this appeal that it suffers from total non-application of mind and, therefore, that order is liable to be set aside. 4. Accordingly, the order dated 19-3-2008 is set aside. Appeal No.551 of 2005 is remitted back to the tribunal for denovo consideration and decision on merits in accordance with law. 5. The appeal is disposed of. 6. In view of the order passed in appeal, nothing further survives for consideration in the civil application. The same is thus dismissed. D.K. DESHMUKH, J. J.P. DEVADHAR, J.