FERA versus M/S. PREMIER LIMITED (FORMERLY PREMIER AUTOMOBILES LTD.) & ORS.

Citation: [2019] 2 S.C.R. 551 · Decided: 29-01-2019 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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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was repealed w.e.f 01.06.2000 and replaced by FEMA – On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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552                    SUPREME COURT REPORTS            [2019] 2 S.C.R.
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
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