FERA versus M/S. PREMIER LIMITED (FORMERLY PREMIER AUTOMOBILES LTD.) & ORS.
[2019] 2 S.C.R. 551, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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UNION OF INDIA & ORS.
v.
M/s. PREMIER LIMITED (FORMERLY PREMIER
AUTOMOBILES LTD.) & ORS.
(Civil Appeal No. 3529 of 2008)
JANUARY 29, 2019
[ABHAY MANOHAR SAPRE AND INDIRA BANERJEE, JJ.]
Foreign Exchange Regulation Act, 1973 :
ss.9(1) (a), 9(1)(c), 16(1), 50-52 and 81 – Repeal of 1973
Act-FERA – Appeals filed thereafter against order passed u/s.51 of
FERA – Proper appellate authority for deciding – Special Director
(Appeals) u/s.17 of 1999 Act-FEMA (that replaced FERA) or
Appellate Tribunal u/s.19 of FEMA – On 01.05.1991 show cause
notice issued by the Special Director to respondent no.2 and its two
directors, respondent nos.3 and 4 for allegedly contravening
provisions of FERA– During the pendency of the proceedings, FERA
was repealed w.e.f 01.06.2000 and replaced by FEMA – On
05.12.2003, adjudication order passed by the Deputy Director of
Enforcement under FEMA r/w s.51 of FERA, in relation to the show
cause notice dtd. 01.05.1991, imposing penalty of Rs.15,50,000/-
on respondent nos.2 to 4 – Appeal filed by respondent nos.2 to 4
before the Special Director (Appeals) u/s.17 of FEMA, which was
dismissed as not maintainable – Writ petitions filed by respondent
nos.2 to 4, which were allowed – Orders of the Special Director
(Appeals) were quashed by the High Court holding that the appeals
filed by respondent nos.2 to 4 before the Special Director (Appeals)
were maintainable – On appeal, held: Any appeal whether filed
prior to 01.06.2000 or after 01.06.2000
against the order of the
Adjudicating Officer passed u/s.51 of FERA in the proceedings
initiated under FERA would lie before the Appellate Tribunal u/
s.19 of FEMA – View taken by the High Court not concurred with –
Appeal filed by respondent nos.2 to 4 against the order dtd.
05.12.2003 passed by Deputy Director of Enforcement u/s.51 of
FERA will lie and was, therefore, maintainable only before the
Appellate Tribunal u/s.19 of FEMA – Appeals filed by respondent
nos.2 to 4 before the Special Director (Appeals) accordingly
transferred to the Appellate Tribunal for disposal on merits – Foreign
[2019] 2 S.C.R. 551
551
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Exchange Management Act, 1999 – ss.17-19, 35 and 49 – Foreign
Exchange Regulation Act, 1947 – s.23 – Interpretation of Statutes
– Purposive Interpretation.
Allowing the appeal, the Court
HELD: 1.1 Section 49(5)(b) of Foreign Exchange
Management Act, 1999 (FEMA) deals with repeal and saving in
relation to the action taken and to be taken under Foreign
Exchange Regulation Act, 1973 (FERA). Reading of this Section
shows that the legislature has equated the Appellate Board
constituted under FERA with the Appellate Tribunal constituted
under FEMA for disposal of the appeals filed under Section 52(2)
of FERA against an order passed under Section 51 of FERA which
were pending before the Appellate Board as on 01.06.2000. Such
appeals stood transferred from the Appellate Board to the
Appellate Tribunal for their disposal in accordance with law.  The
reason as to why a specific provision for transfer of such pending
appeals was made for their disposal from the Appellate Board to
the Appellate Tribunal was that the Appellate Board constituted
under FERA stood dissolved by Section 49(1) of FEMA with effect
from 01.06.2000.  [Paras 19, 20][566-G-H; 567-A]
1.2 It is this dissolution of the Appellate Board, which
necessitated the legislature to make a corresponding provision
in the new Act (FEMA) so that the consequences arising out of
the dissolution of the Appellate Board constituted under FERA
is
taken care of by another appellate authority constituted under
the FEMA and all pending appeals are automatically transferred
to the Appellate Board for their disposal under FEMA. Any
appeal filed after 01.06.2000 against the order of the Adjudicating
Officer passed under Section 51 of FERA in the proceedings
initiated under FERA would lie before the Appellate Tribunal
under Section 19 of FEMA. [Paras 21, 22][567-B-D]
1.3 This is for more than one reason. First, if the
Adjudicating Officer had passed an order under Section 51 of
FERA prior to 01.06.2000, then the appeal against such order
was required to be filed before the Appellate Board under Section
52 (2) of FERA.  In other words, if the Adjudicating Officer had
passed the order under Section 51 of FERA prior to 01.06.2000
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when FERA was in force, the appeal against such order was
maintainable only under Section 52 (2) before the Appellate Board
under FERA. Second, if such appeal had remained pending before
the Appellate Board on 01.06.2000, the same would have been
transferred to the Appellate Tribunal constituted under FEMA
in terms of Section 49 (5)(b) of FEMA for its disposal. Third, a
fortiori, any appeal, if filed after 01.06.2000 and against the similar
order, i.e., an order passed under Section 51 of FERA should
also be held to lie before the Appellate Tribunal under Section
19 of FEMA alike the appeals filed prior to 01.06.2000 and which
were transferred to the Appellate Tribunal by virtue of Section
49(5)(b) of FEMA. Fourth, the reason behind this simultaneous
statutory transfer of pending appeals to the Appellate Tribunal
under FEMA appears to be that the legislature did not intend to
provide two separate Appellate Authorities under FEMA for
challenging the adjudication order passed under Section 51 of
the FERA, i.e., one appeal before the Special Director (Appeals)
and the other appeal before the Appellate Tribunal under FEMA.
[Paras 22-27][567-D-F; G; 568-A-B]
1.4 In other words, the legislature did not intend to make a
distinction between the two appeals for their disposal by two
different appellate authorities under FEMA only because one
appeal was filed prior to 01.06.2000, therefore, it will lie before
the Appellate Tribunal whereas the other appeal which
was filed
after 01.06.2000 though against the similar order, it will lie before
the Special Director (Appeals).  There does not appear to be any
justifiable reason to make such distinction for filing of appeals
filed against the similar order passed under FERA before two
different appellate authorities under FEMA. This intention of the
legislature is strengthened when one reads Section 49 (5)(b) of
FEMA and Section 81(c) of FERA.[Paras 28, 29][568-C-D]
1.5 Section 49(5)(b) of FEMA specifically provides that the
appeals filed under Section 52(2) of FERA against the order
passed under Section 51 of FERA will be decided by the Appellate
Tribunal under FEMA. Section 81(c) of FERA, 1973 deals with
Repeal and Saving of FERA, 1947. Clause (c) of Section 81
specifically provides that all the appeals filed under Section 23 of
FERA, 1947, whether pending on the date of Repeal or/and those
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filed after the repeal of FERA, 1947, shall be disposed of by the
Appellate Board constituted under FERA, 1973. It is true that
Section 49(5)(b) of FEMA is not worded alike Section 81(c) of
FERA,  yet, it shows the intention of the legislature that all such
appeals have to be heard by the Appellate Board under the FERA.
Indeed, when similar occasion arose at the time of repealing of
FERA, 1947 by a new Act- FERA, 1973 on 01.01.1974, the
legislature provided in Section 81(c) of FERA, 1973 that all
appeals filed under Section 23(E)(2) of FERA, 1947 and pending
before the Appellate Board including those appeals which are
filed against the order passed after 01.01.1974 shall be disposed
of by the Appellate Board under FERA, 1973. [Paras 30-32, 35]
[568-E-G; 569-C]
1.6 Perusal of Scheme of FEMA would show that the Special
Director (Appeals) is subordinate in hierarchy to the Appellate
Tribunal prescribed under Section 49(5)(2) of  FEMA. It is,
therefore, not possible to hold that one appeal would be
maintainable before the Appellate Tribunal and the other appeal
arising out of similar order would be maintainable before the
Special Director (Appeals), who is subordinate in hierarchy to
the Appellate Board.  Such distinction does not stand for any
logic. [Para 37][569-E, F]
1.7 Applying the principle of purposive interpretation, the
appellate forum for deciding the appeals arising out of the
order
passed under Section 51 of FERA whether filed prior to
01.06.2000 or filed after 01.06.2000 must be the same, i.e.,
Appellate Tribunal under FEMA. The view taken by the High
Court cannot be concurred with and accordingly it is held that
the appeal filed by respondent nos. 2 to 4 against the order dated
05.12.2003 passed by Deputy Director of enforcement under
Section 51 of FERA will lie and was, therefore, maintainable only
before the Appellate Tribunal under Section 19 of FEMA.
[Paras 40, 41][570-C-D]
1.8 The appeals which respondent Nos.2 to 4 had filed
before the Special Director (Appeals) are accordingly transferred
to the concerned Appellate Tribunal constituted under
FEMA for their disposal on merits in accordance with law.
[Para 42][570-E]
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3529
of 2008.
From the Judgment and Order dated 13.07.2006 of the High Court
of  Judicature at Bombay in Writ Petition Nos.2780-2782 of 2004 and
Writ Petition No.1567 of 2005 respectively.
K. Radhakrishnan, Sr. Adv., Ms. Rashmi Malhotra, Rajesh Ranjan,
Ms. Sunita Rani Singh, Sumit Teterwal, Chakitan Vikram Shekher Papta
(for B. Krishna Prasad), Advs. for the Appellant.
Ajay Aggarwal, Ms. Mallika Joshi, Rajan Narain, Manish K.
Bishnoi, Archit Gupta, Ms. Tanvi Sapra, Narinder K. Verma,  Anurag
Bhatt, Advs. for the Respondents.
The Judgment of the Court was delivered by
ABHAY MANOHAR SAPRE, J.
1. This appeal is filed by the Union of India against the final
judgment and order dated 13.07.2006 passed by the High Court of
Judicature at Bombay in Writ Petition Nos. 1567 of 2005, 2780, 2781 &
2782 of 2004 wherein the High Court allowed the writ petitions and
quashed the orders passed by the Special Director (Appeals).
2. The controversy involved in this appeal is short.  However, in
order to appreciate the same, few undisputed facts need mention
hereinbelow.
3. On 01.05.1991, a memorandum to show cause notice was issued
by the Special Director to respondent Nos. 2, 3 and 4, namely, M/s
Godrej Industries Ltd. [formerly known as Godrej Soaps Ltd. (R-2)]
and its two Directors (R-3 and R-4) for allegedly committing contravention
of Sections 9 (1) (a), 9(1)(c) and Section 16(1) of the Foreign Exchange
Regulation Act,
1973 (hereinafter referred to as  “FERA”) in respect of
imports and exports of certain commodities made with two foreign
parties, viz., M/s Fingrain, S.A., Geneva and M/s Continental Grain Export
Corporation, New York during the year 1977-78.
4. During the pendency of the proceedings, FERA was repealed
with effect from 01.06.2000. It was, however, replaced by Foreign
Exchange Management Act, 1999 (hereinafter referred to as “FEMA”).
5. On 05.12.2003, an adjudication order was passed by the Deputy
Director of Enforcement under FEMA read with FERA in relation to
the show cause notice dated 01.05.1991. By this order, penalty of
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Rs.15,50,000/-  was imposed on M/s Godrej Industries Ltd. and its two
Directors for contravening the provisions of Sections 9 (1)(a) and 9(1)(c)
read with Section 16 (1) of FERA.
6. On 15.01.2004, the respondent Nos. 2 to 4 felt aggrieved by
the adjudication order dated 05.12.2003 and filed appeal before the Special
Director (Appeals) under Section 17 of FEMA.
7. On 08.09.2004 and 08.11.2004, the Special Director (Appeals)
dismissed the appeals as being not maintainable. He held that the Special
Director (Appeals) has no jurisdiction to hear the appeals against the
adjudication order passed under Section 51 of FERA.
8. Respondent Nos. 2 to 4 felt aggrieved by orders dated 08.09.2004
and 08.11.2004 and filed writ petitions before the High Court of Bombay
at Mumbai.  By impugned common order, the High Court allowed the
writ petitions and quashed the orders of the Special Director (Appeals).
The High Court held that the appeals filed by respondent Nos.2 to 4
before the Special Director (Appeals) against the adjudication order dated
05.12.2003 were maintainable inasmuch as the Special Director
(Appeals) possessed the jurisdiction to decide the appeals on merits.
9. It is against this order of the High Court,  the Revenue has felt
aggrieved and filed the present appeal by way of  special leave before
this Court.
10. Heard learned counsel for the parties.
11. Learned counsel for the appellant
(Union of India) while
assailing the legality of the impugned order contended that on proper
reading of relevant provisions of FERA and FEMA and especially Section
81 of FERA and Sections 17, 19 and 49 of FEMA in juxtaposition, it is
clear that the appeal against the order dated 05.12.2003 passed by the
Deputy Director of Enforcement (Adjudicating Officer) under Section
51 of FERA read with FEMA would lie only to the Appellate Tribunal
under Section 19 of FEMA but not before the Special Director (Appeals)
under Section 17 of FERA.
12. It is this submission, the learned counsel elaborated in his
argument by referring to various provisions of FERA and FEMA.
13. In reply, learned counsel for the respondents(assessees)
supported the view taken by the High Court and contended that the
appeal was rightly held maintainable under Section 17 of FEMA before
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the Special Director (Appeals) against the order dated 05.12.2003 passed
by Deputy Director of Enforcement as an Adjudicating Officer for its
disposal.  Learned counsel also referred to the provisions of FERA and
FEMA to support his arguments.
14. Having heard the learned counsel for the parties and on perusal
of the record of the case including the written submissions, we find
force in the submissions of learned counsel for the appellants-UOI.
15. The question, which arises for consideration in this appeal,
is - which is the proper appellate authority for deciding the appeals filed
after repeal of FERA on 01.06.2000 against the order passed under
Section 51 of FERA  in the proceedings initiated prior to 01.06.2000,
viz., is it the “Special Director (Appeals)” under Section 17 of FEMA or
is it the “Appellate Tribunal” under Section 19 of FEMA.
16. In other words, the question is, if the Adjudicating Officer has
passed an order after the repeal of FERA in the proceedings initiated
prior to 01.06.2000, whether an appeal against such order will lie before
the “Special Director (Appeals)” under Section 17 of FEMA or before
the “Appellate Tribunal” under Section 19 of FEMA.
17. In order to answer the question involved in this appeal, it is
necessary to take note of some relevant provisions of FERA (since
repealed) and FEMA under which the issue was dealt with.  Though
Rules are also framed under FEMA prescribing the manner in which the
appeals are to be
prosecuted but for deciding the question, it may not be
necessary to examine the Rules.
18. The relevant Sections are Sections 50, 51, 52, 54 and 81 of
FERA and Sections 17, 18, 19 and 49 of FEMA which read as under:
“FERA
Section 50
Penalty-If any person contravenes any of the provisions
of this Act other than section 13, clause (a) of sub-section
(1) of section 18, section 18 A and clause (a) of sub-section
(1) of section 19  or of any rule, direction or order made
thereunder, he shall be liable to such penalty not exceeding
five times the amount or value involved in any such
contravention or five thousand rupees, whichever is more
as may be adjudged by the Director of Enforcement or any
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[ABHAY MANOHAR SAPRE, J.]
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other officer of Enforcement not below the rank of an
Assistant Director of Enforcement specially empowered in
this behalf by order of the Central Government (in either
case hereinafter referred to as the adjudicating officer).
Section 51
Power to adjudicate - For the purpose of adjudging under
section 50 whether any person has committed a
contravention of any of the provisions of this Act (other
than those referred to in that section) or of any rule,
direction or order made thereunder, the adjudicating officer
shall hold an inquiry in the prescribed manner after giving
that person a reasonable opportunity for making a
representation in the matter and if, on such inquiry, he is
satisfied that the person has committed the contravention,
he may impose such penalty as he thinks fit in accordance
with the provisions of that section.
Section 52
Appeal to Appellate Board - (1) The Central Government,
may by notification in the Official Gazette, constitute an
Appellate Board to be called the Foreign Exchange
Regulation Appellate Board consisting of a Chairman [being
a person who has for at least ten years held a civil judicial
post or who has been a member of the Central Legal
Service (not below Grade 1) for at least three years or who
has been in practice as an advocate for at least ten years]
and such number of other members, not exceeding four to
be appointed by the Central Government for
hearing
appeals against the orders of the adjudicating officer made
under section 51.
(2) Any person aggrieved by such order may, on payment
of such fee as may be prescribed and after depositing the
sum imposed by way of penalty under section 50 and within
forty-five days from the date on which the order is served
on the person committing the contravention, prefer an
appeal to the Appellate Board:
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Provided that the Appellate Board may entertain any
appeal after the expiry of the said period of forty-five days,
but not after ninety days from the date aforesaid if it is
satisfied that the appellate was prevented by sufficient cause
from filing the appeal in time:
Provided further that where the Appellate Board is of
opinion that the deposit to be made will cause undue
hardship to the appellant, it may, in its own discretion,
dispense with such a deposit either unconditionally or
subject to such conditions as it may deem fit.
(3) On receipt of an appeal under sub-section (2) the
Appellate Board may, after making such further inquiry as
it deems fit, confirm, modify or set aside the order appealed
against and the decision of the Appellate Board shall,
subject to the provisions of section 54, be final and if the
sum deposited by way of penalty under sub-section (2)
exceeds the amount directed to be paid by the Appellate
Board, the excess amount shall be refunded.
(4) The Appellate Board may, for the purpose of
examining the legality, propriety or correctness of any order
made by the adjudicating officer under section 50 read with
section 51 in relation to any proceeding, on its own motion
or otherwise, call for the records of such proceeding and
make such order in the case as it thinks fit.
 (5) No order of the adjudicating officer made under
section 50 read with section 51 shall be varied by the
Appellate Board so as to prejudicially affect any person
without giving such person a reasonable opportunity for
making a representation in the matter; and subject thereto
the Appellate Board shall follow such procedure, in respect
of the proceedings before it, as may be prescribed.
(6) The powers and functions of the Appellate Board may
be exercised and discharged by Benches consisting of two
members and constituted by the Chairman of the Appellate
Board:
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Provided that if the members of the Bench differ on any
point or points, they shall state the point or points on which
they differ and refer the same to a third member (to be
specified by the Chairman) for hearing on such point or
points and such point or points shall be decided according
to the opinion of that member:
Provided further that it shall be competent for the
Chairman or any other member of the Appellate Board
authorised by the Chairman in this behalf to exercise the
powers and discharge the functions of the Appellate Board
in respect of any appeal against an order imposing a penalty
of an amount not exceeding two lakhs and fifty thousand
rupees.
Section 54
Appeal to High Court - An appeal shall lie to the High
Court only on questions of law from any decision or order
of the Appellate Board under sub-section (3) or sub-section
(4) of section 52:
Provided that the High Court shall not entertain any
appeal under this section if it is filed after the expiry of
sixty days of the date of communication of the decision or
order of the Appellate Board, unless the High Court is
satisfied that the appellant was prevented by sufficient cause
from filing the appeal in time.
Explanation. —In this section and in section 55, “High
Court” means-
(i) the High Court within the jurisdiction of which the
aggrieved party ordinarily resides or carries on business
or personally works for gain; and
(ii) 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.
Section 81
Repeal and Saving - (1) The Foreign Exchange
Regulation Act, 1947 (7 of 1947) is hereby repealed.
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(2) Notwithstanding such repeal-
(a) anything done or any action taken or purported to
have been done or taken (including any rule, notification,
inspection, order or notice made or issued, or any
appointment, confirmation or declaration made or any
licence, permission, authorisation or exemption granted or
any document or instrument executed or any direction given
or any proceedings taken or any confiscation adjudged or
any penalty or fine imposed) under the Act hereby repealed
shall, in so far as it is not inconsistent with the provisions
of this Act, be deemed to have been done or taken under
the corresponding provisions of this Act;
(b) the provisions of section 60 of this Act shall apply in
relation to the contravention of any of the provisions of the
Act hereby repealed or of any rule, direction or order made
thereunder;
(c) any appeal preferred to the Foreign Exchange
Regulation Appellate Board under sub-section (2)of section
23E of the Act hereby repealed but not disposed of before
the commencement of this Act and any appeal that may be
preferred to the said Board against any order made or to
be made under section 23 of the Act hereby repealed may
be disposed of by any member of the Appellate Board
constituted under this Act in accordance with the provisions
of sub-section (6) of section 52 of this Act;
(d) every appeal from any decision or order of the Foreign
Exchange Regulation Appellate Board under sub-section
(3) or sub-section (4) of section
23E of the Act hereby
repealed shall, if not filed before the commencement of this
Act, be filed before the High Court within a period of sixty
days of such commencement:
 Provided that the High Court may entertain any such
appeal after the expiry of the said period of sixty days if it is
satisfied that the appellant was prevented by sufficient cause
from filing the appeal within the said period.
(3) The mention of particular matters in sub-section (2)
shall not be held to prejudice or affect the general
application of section 6 of the General Clauses Act, 1897
(10 of 1897) with regard to the effect of repeal.
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FEMA
Section 17
 Appeal to Special Director (Appeals).—
(1) The Central Government shall, by notification, appoint
one or more Special Directors (Appeals) to hear appeals
against the orders of the Adjudicating Authorities under
this section and shall also specify in the said notification
the matter and places in relation to which the Special
Director (Appeals) may exercise jurisdiction.
(2) Any person aggrieved by an order made by the
Adjudicating Authority, being an Assistant Director of
Enforcement or a Deputy Director of Enforcement, may
prefer an appeal to the Special Director (Appeals).
(3) Every appeal under sub-section (1) shall be filed within
forty-five days from the date on which the copy of the order
made by the Adjudicating Authority is received by the
aggrieved person and it shall be in such form, verified in
such manner and be accompanied by such fee as may be
prescribed:
Provided that the Special Director (Appeals) may
entertain an appeal after the expiry of the said period of
forty-five days, if he is satisfied that there was sufficient
cause for not filing it within that period.
(4) On receipt of an appeal under sub-section (1), the
Special Director (Appeals) may after giving the parties to
the appeal an opportunity of being heard, pass such order
thereon as he thinks fit, confirming, modifying or setting
aside the order appealed against.
(5) The Special Director
(Appeals) shall send a copy of
every order made by him to the parties to appeal and to the
concerned Adjudicating Authority.
(6) The Special Director (Appeals) shall have the same
powers of a civil court which are conferred on the Appellate
Tribunal under sub-section (2) of section 28 and—
(a) all proceedings before him shall be deemed to be
judicial proceedings within the meaning of sections 193 and
228 of the Indian Penal Code (45 of 1860);
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(b) shall be deemed to be a civil court for the purposes
of sections 345 and 346 of the Code of Criminal Procedure,
1973 (2 of 1974).
Section 18
Appellate Tribunal.— The Appellate Tribunal constituted
under sub-section(1) of Section 12 of the Smugglers and
Foreign Exchange Manipulators (Forfeiture of Property)
Act, 1976 (13 of 1976), shall, on and from the
commencement of Part XIV of Chapter VI of the Finance
Act, 2017, be the Appellate Tribunal for the purposes of
this Act and the said Appellate Tribunal shall exercise the
jurisdiction, powers and authority conferred on it by or under
this Act.
Section 19
Appeal to Appellate Tribunal.—
(1) Save as provided in sub-section (2), the Central
Government or any person aggrieved by an order made by
an Adjudicating Authority, other than those referred to in
sub-section (1) of section 17, or the Special Director
(Appeals), may prefer an appeal to the Appellate Tribunal:
Provided that any person appealing against the order of
the Adjudicating Authority or the Special Director (Appeals)
levying any penalty, shall while filing the appeal, deposit
the amount of such penalty with such authority as may be
notified by the Central Government:
Provided further that where in any particular case, the
Appellate Tribunal is of the opinion that the deposit of such
penalty would cause undue hardship to such person, the
Appellate Tribunal may dispense with such deposit subject
to such conditions as it may deem fit to impose so
as to
safeguard the realisation of penalty.
(2) Every appeal under sub-section (1) shall be filed within
a period of forty-five days from the date on which a copy of
the order made by the Adjudicating Authority or the Special
Director (Appeals) is received by the aggrieved person or
by the Central Government and it shall be in such form,
verified in such manner and be accompanied by such fee as
may be prescribed:
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Provided that the Appellate Tribunal may entertain an
appeal after the expiry of the said period of forty-five days
if it is satisfied that there was sufficient cause for not filing
it within that period.
(3) On receipt of an appeal under sub-section (1), the
Appellate Tribunal may, after giving the parties to the appeal
an opportunity of being heard, pass such orders thereon as
it thinks fit, confirming, modifying or setting aside the order
appealed against.
(4) The Appellate Tribunal shall send a copy of every
order made by it to the parties to the appeal and to the
concerned Adjudicating Authority or the Special Director
(Appeals), as the case may be.
(5) The appeal filed before the Appellate Tribunal under
sub-section (1) shall be dealt with by it as expeditiously as
possible and endeavour shall be made by it to dispose of
the appeal finally within one hundred and eighty days from
the date of receipt of the appeal:
Provided that where any appeal could not be disposed of
within the said period of one hundred and eighty days, the
Appellate Tribunal shall record its reasons in writing for
not disposing of the appeal within the said period.
(6) The Appellate Tribunal may, for the purpose of
examining the legality, propriety or correctness of any order
made by the Adjudicating Authority under section 16 in
relation to any proceeding, on its own motion or otherwise,
call for the records of
such proceedings and make such
order in the case as it thinks fit.
Section 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
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the appeal 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.
Section 49
Repeal and saving.—
(1) The Foreign Exchange Regulation Act, 1973 (46 of
1973) is hereby repealed and the Appellate Board
constituted under sub-section (1) of section 52 of the said
Act (hereinafter referred to as the repealed Act) shall stand
dissolved.
(2) On the dissolution of the said Appellate Board, the
person appointed as Chairman of the Appellate Board and
every other person appointed as Member and holding office
as such immediately before such date shall vacate their
respective offices and no such Chairman or other person
shall be entitled to claim any compensation for the
premature termination of the term of his office or of any
contract of service.
(3) Notwithstanding anything contained in any other law
for the time being in force, no court shall take cognizance
of an offence under the repealed Act and no adjudicating
officer shall take notice of any contravention under
section
51 of the repealed Act after the expiry of a period of two
years from the date of the commencement of this Act.
(4) Subject to the provisions of sub-section (3) all offences
committed under the repealed Act shall continue to be
governed by the provisions of the repealed Act as if that
Act had not been repealed.
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(5) Notwithstanding such repeal,—
(a) anything done or any action taken or purported to have
been done or taken including any rule, notification,
inspection, order or notice made or issued or any
appointment, confirmation or declaration made or any
licence, permission, authorisation or exemption granted or
any document or instrument executed or any direction given
under the Act hereby repealed shall, in so far as it is not
inconsistent with the provisions of this Act, be deemed to
have been done or taken under the corresponding
provisions of this Act;
(b) any appeal preferred to the Appellate Board under
sub-section (2) of section 52 of the repealed Act but not
disposed of before the commencement of this Act shall stand
transferred to and shall be disposed of by the Appellate
Tribunal constituted under this Act;
(c) every appeal from any decision or order of the
Appellate Board under sub-section (3) or sub-section (4)
of section 52 of the repealed Act shall, if not filed before
the commencement of this Act, be filed before the High
Court within a period of sixty days of such commencement:
Provided that the High Court may entertain such appeal
after the expiry of the said period of sixty days if it is satisfied
that the appellant was prevented by sufficient cause from
filing the appeal within the said period.
(6) Save as otherwise provided in sub-section (3), the
mention of particular
matters in sub-sections (2), (4) and
(5) shall not be held to prejudice or affect the general
application of section 6 of the General Clauses Act, 1897
(10 of 1897), with regard to the effect of repeal.”
19. Section 49 (5)(b) of FEMA deals with repeal and saving in
relation to the action taken and to be taken under FERA, 1973. Reading
of this Section shows that the legislature has equated the Appellate Board
constituted under FERA with the Appellate Tribunal constituted under
FEMA for disposal of the appeals filed under Section 52(2) of FERA
against an order passed under Section 51 of FERA which were pending
before the Appellate Board as on 01.06.2000. Such appeals stood
transferred from the Appellate Board to the Appellate Tribunal for their
disposal in accordance with law.
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20. The reason as to why a specific provision for transfer of such
pending appeals was made for their disposal from the Appellate Board
to the Appellate Tribunal was that the Appellate Board constituted under
FERA stood dissolved by Section 49(1) of FEMA with effect from
01.06.2000.
21. It is this dissolution of the Appellate Board, which necessitated
the legislature to make a corresponding provision in the new Act (FEMA)
so that the consequences arising out of the dissolution of the Appellate
Board constituted under FERA is taken care of by another appellate
authority constituted under the FEMA and all pending appeals are
automatically transferred to the Appellate Board for their disposal under
FEMA.
22. Having examined the relevant provisions of FERA and FEMA,
we are of the considered opinion that any appeal filed after 01.06.2000
against the order of the Adjudicating Officer passed under Section 51 of
FERA in the proceedings initiated under FERA would lie before the
Appellate Tribunal under Section 19 of FEMA. This we say for more
than one reason set out in detail hereinbelow.
23. First, if the Adjudicating Officer had passed an order under
Section 51 of FERA prior to 01.06.2000, then the appeal against such
order was required to be filed before the Appellate Board under Section
52 (2) of FERA. In other words, if the Adjudicating Officer had passed
the order under Section 51 of FERA prior to 01.06.2000 when FERA
was in force, the appeal against such
order was maintainable only under
Section 52 (2) before the Appellate Board under FERA.
24. Second, if such appeal had remained pending before the
Appellate Board on 01.06.2000, the same would have been transferred
to the Appellate Tribunal constituted under FEMA in terms of Section 49
(5)(b) of FEMA for its disposal.
25. Indeed, there can be no dispute to the legal position mentioned
in the First and Second reasoning supra.
26. Third, a fortiori, any appeal, if filed after 01.06.2000 and
against the similar order, i.e., an order passed under Section 51 of FERA
should also be held to lie before the Appellate Tribunal under Section 19
of FEMA alike the appeals filed prior to 01.06.2000 and which were
transferred to the Appellate Tribunal by virtue of Section 49(5)(b) of
FEMA.
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27. Fourth, the reason behind this simultaneous statutory transfer
of pending appeals to the Appellate Tribunal under FEMA appears to be
that the legislature did not intend to provide two separate Appellate
Authorities under FEMA for challenging the adjudication order passed
under Section 51 of the FERA, i.e., one appeal before the Special Director
(Appeals) and the other appeal before the Appellate Tribunal under
FEMA.
28. In other words, the legislature did not intend to make a distinction
between the two appeals for their disposal by two different appellate
authorities under FEMA only because one appeal was filed prior to
01.06.2000, therefore, it will lie before the Appellate Tribunal whereas
the other appeal which was filed after 01.06.2000 though against the
similar order, it will lie before the Special Director (Appeals).  In our
view, there does not appear to be any justifiable reason to make such
distinction for filing of appeals filed against the similar order passed under
FERA before two different appellate authorities under FEMA.
29. In our opinion, this intention of the legislature is strengthened
when we read Section 49 (5)(b) of FEMA and Section 81(c) of FERA.
30. So far as Section 49(5)(b) of FEMA is concerned,  as mentioned
above, it specifically provides that the appeals filed under Section 52 (2)
of FERA against the order passed under Section 51 of FERA will be
decided
by the Appellate Tribunal under FEMA.
31. So far as Section 81(c) of FERA, 1973 is concerned, it deals
with Repeal and Saving of FERA, 1947.  Clause (c) of Section 81
specifically provides that all the appeals filed under Section 23 of FERA,
1947, whether pending on the date of Repeal or/and those filed after the
repeal of FERA, 1947, shall be disposed of by the Appellate Board
constituted under FERA, 1973.
32. It is true that Section 49 (5)(b) of FEMA is not worded alike
Section 81 (c) of FERA,  yet, in our view, it shows the intention of the
legislature that all such appeals have to be heard by the Appellate Board
under the FERA. The legislative intent contained in Section 81 (c) can
be taken into account for interpreting the relevant provisions of FERA
and FEMA for deciding the question which is the subject matter of this
appeal.
33. We cannot, therefore, accept the submission of learned counsel
for the respondents(assessees) that since Section 49(5)(b) of FEMA is
not identically worded on the pattern of Section 81(c) of FERA, that
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itself would justify that the legislature intended to provide two appellate
authorities in FEMA for filing two types of appeals arising out of a similar
order.
34. In other words, it is not possible to accept the submission of
learned counsel for the respondents(assessees) that by interpretative
process this Court can uphold creation of another appellate authority for
the disposal of the appeals filed against the order passed under Section
51 of FERA after 01.06.2000 which do not fall under Section 49 (5)(2)
of FEMA.
35. Indeed,  as mentioned above, when similar occasion arose at
the time of repealing of FERA, 1947 by a new Act- FERA, 1973 on
01.01.1974, the legislature provided in Section 81(c) of FERA, 1973 that
all appeals filed under Section 23 (E)(2) of FERA, 1947 and pending
before the Appellate Board including those appeals which are filed against
the order passed after 01.01.1974 shall be disposed of by the Appellate
Board under FERA, 1973.
36. Keeping in view this legislative intent, we are of the view that
there is no reason as to why the same legislative intent while interpreting
the provisions of FERA, 1973 and FEMA, 1999 is applied for deciding
the identical question now arising in the case.
37. The aforementioned submission is not acceptable for yet
another reason.  Perusal of Scheme of FEMA would show that the
Special Director (Appeals) is subordinate in hierarchy to the Appellate
Tribunal prescribed under Section 49(5)(2) of  FEMA.   It
is, therefore,
not possible to hold that one appeal would be maintainable before the
Appellate Tribunal and the other appeal arising out of similar order would
be maintainable before the Special Director (Appeals), who is subordinate
in hierarchy to the Appellate Board.  Such distinction does not stand for
any logic.
38. This question can be examined from another angle also.  If
the submission of the learned counsel for the respondents is accepted
that the appellate forum in this case for filing appeal is -  “Special Director
(Appeals)” and not the  “Appellate Tribunal” under FEMA  then it will
result in anomalous  situations which will again be incongruous.
39. The anomalous situation would be,  the orders passed by the
Appellate Tribunal in the appeals, which stood transferred to the Appellate
Tribunal by virtue of Section 49 (5)(b),  are appealable to the High Court
under Section 35 of FEMA whereas  the orders passed by the Special
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Director (Appeals) in the appeals filed after 01.06.2000 are not appealable
to the High Court under Section 35 of FEMA.  So, against the same
order, one appellant has a right of appeal to the High Court but the other
appellant has no such right of appeal because he suffered dismissal of
his appeal from Special Director (Appeals) against whose order appeal
does not lie under Section 35 to the High Court. In our view, such
anomalous situation while interpreting the provisions of the Act should
always be avoided.
40. Applying the principle of purposive interpretation, we are of
the view that the appellate forum for deciding the appeals arising out of
the order passed under Section 51 of FERA whether filed prior to
01.06.2000 or filed after 01.06.2000 must be the same, i.e., Appellate
Tribunal under FEMA.
41. In view of the foregoing discussion, we cannot concur with
the view taken by the High Court and accordingly hold that the appeal
filed by respondent Nos. 2 to 4 against the order dated 05.12.2003 passed
by Deputy Director of enforcement under Section 51 of FERA will lie
and was, therefore, maintainable only before the Appellate Tribunal under
Section 19 of FEMA.
42. The appeals bearing Nos.SD/A/MUM/04-05/38,39,40 and SD/
A/MUM/03-04/22 which respondent Nos. 2 to 4 had filed before the
Special Director (Appeals) are accordingly transferred to the concerned
Appellate Tribunal constituted
under Section 18 of FEMA for their disposal
on merits in accordance with law.
43. The appeal is accordingly allowed. The impugned order is set
aside.
Divya Pandey
Appeal allowed.