MIS. OPERA HOUSE EXPORTS LTD. ETC. & ORS. versus UNION OF INDIA & ANR. ETC.

Citation: [2014] 9 S.C.R. 233 · Decided: 14-07-2014 · Supreme Court of India · Bench: S. J. MUKHOPADHAYA · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2014] 9 S.C.R. 233 
MIS. OPERA HOUSE !:XPORTS LTD. ETC. & ORS. 
v. 
UNION OF INDIA & ANR. ETC. 
(Criminal Appeal Nos. 1451-1455 of 2014) 
JULY 14, 2014 
[SUDHANS~ JYOTI MUKHOPADHAYA AND 
V. GOPALA GOWDA, JJ.] 
A 
B 
Foreign Exchange Regulation Act, 1973 -
s. 52 -
Appeal to appellate board - Cognizance in the matter taken 
C 
within the sunset period - Adjudication proceedings carried 
out under the provisions of FERA - Appeal against orders of 
adjudicating officer to the appellate board filed beyond the 
period of 90 days from the date of service of adjudication 
order - Appellate tribunal dismissed the appeal on the o 
ground that in view of s. 52(2), delay beyond the period of 90 
days could not be condoned - Order upheld by the High Court 
- Application of the provisions of FERA or Foreign Excharoge 
Management Act, 1999 - Held: Under s. 52(2) of FEHA 
appeal against order u/s 51 can be filed within 45 days from 
the date on which the order is served on the person -
Appellate board is also empowered under proviso to sub 
section (2) of s. 52 to entertain any appeal even after expiry 
E 
F 
of that period of 45 days but not after 90 days, from the date 
subject to satisfaction that the appellant was prevented by 
sufficient cause from filing the appeal in time - On facts, 
delay in filing appeal is computed as 89 days - Therefore, 
even uls 52 of FERA, the appellate board was empowered to 
condone the delay, as the appeal was filed before 90 days 
and not later than 90 days - Even otherwise appeal not barred 
by limitation - Thus, orders passed by the tribunal and the 
G 
High Court set aside -Matter remitted back to the tribunal. 
The question that arose for consideration in the 
instant appeals is when the cognizance in the matter was 
233 
H 
234 
SUPREME COURT REPORTS 
[2014] 9 S.C.R. 
A taken within the sunset period and the adjudication 
proceedings were carried out under the provisions of 
Foreign Exchange Regulation Act, 1973 (FERA), for the 
purpose of counting delay in appeals against orders of 
adjudicating- officer to the appellate Board, the provision 
B of FERA or Foreign Exchange Management Act, 1999 
would apply. 
Allowing the appeals, the Court 
HELD: 1.1. Sub Section (1) of Section 49 of Foreign 
c Exchange Management Act, 1999 makes it clear that the 
Appellate Board constituted under Foreign Exchange 
Regulation Act, 1973 stood abolished w.e.f. 1.6.2000 i.e. 
the day FEMA came into force. Sub Section (3) of Section 
_49 of FEMA prohibits the Courts from taking cognizance 
o of an offence under the repealed Act (FERA) and also 
prohibits the Adjudication Officer from taking notice of 
any contravention u/s 51 of the repealed Act (FERA) after 
the expiry of a period of 2 years from the date of the 
commencement of the Act. However, as per sub Section 
E (4) of Section 49, subject to the provisions of sub Section 
(3) all the offences committed under the repealed Act shall 
continue to be governed by the provisions of the repealed 
Act (FERA) as if that Act had not been repealed. Sub 
Section 5 (b) of Section 49 further provides that any 
appeal preferred to the Appellate Board under sub 
F Section (2) of Section 52 of the repealed Act but not 
disposed of before the commencement of FEMA shall 
stand transferred to and shall be disposed of by the 
Appellate Tribunal constituted under the FEMA. Sub 
Section (6) of Section 49 also specified that the general 
G application of Section 6 of the General Clauses Act, 1897 
save as otherwise in sub Section (3) would not be 
affected. Section 6 of the General Clauses Act provides 
for a protection to any right, privilege, obligation or liability 
acquired or accrued under the enactment which has been 
H repealed. This Court in Thirumalai Chemicals Limited's 
OPERA HOUSE EXPORTS LTD. v. UNION OF INDIA 
235 
case noticed that u/s. 52(2) FERA (repealed Act), a delay 
A 
upto 90 days only was permissible whereas u/s. 19(2) 
proviso of FEMA there is upper limit for condonation of 
delay was not prescribed. [Para 10, 12] [242-F-H; 243-A-
D; 244-A] 
B 
1.2. From s. 52(2) of FEMA it is clear that appeal 
against order u/s 51 can be filed within 45 days from the 
date on which the order is served on the person. The 
appellate board is also empowered under proviso to sub 
Section (2) of Section 52 to entertain any appeal even 
after expiry of that period of 45 days but not after 90 days, 
C 
from the date aforesaid subject to satisfaction that the 
appellant was pr

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