Full Judgment
J.B. Koshy, J.
1. Whether an appeal is maintainable under Section 54 of the Foreign Exchange Regulation Act, 1973 (in short FERA) against an order passed by the Appellate Tribunal or if appeal is not maintainable, what is the remedy available to the person aggrieved is the question to be considered in this order. Section 54 reads as follows:
'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.' (relevant for the purpose of this order)'.
Respondent in the appeal filed an appeal before the Appellate Board under Section 52 of the FERA against adjudication order passed by Special Director of Enforcement Directorate under Section 9(1) (b) and (d) r/w Section 64 of FERA.
2. The appeal filed before the Appellate Board was transferred to the Appellate Tribunal when the Foreign Exchange Management Act, 1999 (in short FEMA) came into force repealing FERA. Section 49 of the FEMA reads as follows:
'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(1) The Foreign Exchange Regulation Act, 1973 (46 of 1973) is hereby repealed and the Appellate Board constituted under Sub-section (1) of Section 52 of the said Act (hereinafter referred to as the repealed Act) shall stand dissolved.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anything contained in any other law for the time being in force, no Court shall take cognizance of an offence under the repealed Act and no adjudicating officer shall take notice of any contravention under Section 51 of the repealed Act after the expiry of a period of two years from the date of commencement of this Act.
(4) Subject to the provisions of Sub-section (3) all offences committed under the repealed Act shall continue to be governed by the provisions of the repealed Act as if that Act had not been repealed.
(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-section s (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.'
After the transfer of the appeal from the Board in view of Section 49(5)(b) of FEMA the Appellate Tribunal modified the Order of Directorate of Enforcement.
3. This appeal was filed by the Directorate of Enforcement against the Order of the Appellate Tribunal under Section 54 of FERA. Registry made an objection to the effect that under Section 54 of the FERA 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. Here in this case the appeal is filed against the Order of the Appellate Tribunal. In view of the above objection, matter was referred to this Bench to decide the maintainability of the appeal.
4. The Appellate Board constituted under FERA was abolished under Section 49(1). At the same time Section 49(4) provided that 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. Section 49(5)(b) provides that appeal pending before the Appellate Board shall be transferred to the Appellate Tribunal. Therefore, the Appellate Tribunal passed the impugned order when the appeal filed before the Board was transferred under Section 49(5)(b) of FEMA. Order was passed by the Appellate Tribunal constituted under FEMA. Section 35 of the Foreign Exchange Management Act, 1999 provides appeal from the orders of the Appellate Tribunal which reads as follows:
'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.'
This is a corresponding provision to Section 52 of FERA.
5. In the above circumstances, the appeal is maintainable under Section 35 of the FEMA against the Order of the Appellate Tribunal even though rights of liabilities and correctness of the impugned order has to be tested under the provisions of FERA existing on the date of passing of the order in view of Section 49(4) of FEMA r/w Section 6 of the General Clauses Act. We are not examining the question whether there is a question of law involved in the appeal. That is a matter to be looked into when the appeal is posted for admission, if the delay in filing the appeal is condoned.
6. Hence, the appeal is maintainable. Registry to treat the appeal as filed under Section 35 of FEMA and post the case before appropriate Court.