Dismissed

FPA-FE-43/MUM/2013 of Enforcement Directorate v/s Mrs. Monica Rostagno

ATFP8 Nov 2017FPA-FE-43/MUM/2013

Case brief

AI extract

What is this about?

In a review application, the Single Judge Bench allowed the petition against an order allowing condonation of delay, ruling it lacked application of mind given identical grounds in a previously dismissed application. Consequently, the appeal under challenge was dismissed.

What did the court decide?

Set aside the order dated 30.03.2016 allowing condonation of delay; dismissed the appeal and the review petition.

FPA-FE-43/MUM/2013 of Enforcement Directorate v/s… — Civil Procedure and Limitation | ATFP (2017)

¶1

APPELLATE TRIBUNAL, FOREIGN EXCHANGE MANAGEMENT ACT AT NEW DELHI

¶2

Date of Decision: 08.11.2017

¶3

FPA-FE-43/MUM/2013

¶4

Enforcement Directorate … Appellant Versus Mrs. Monica Rostagno … Respondent

¶5

Advocates/Authorized Representatives who appeared

¶6

For the appellant : Mr. Prashant Pandey, Advocate For the respondent : Mr. M.S. Bhardwaj, Advocate

¶7

CORAM JUSTICE MANMOHAN SINGH : CHAIRMAN

¶8

FPA-FE-43/MUM/2013

¶9

Both the parties have made their submissions in the application

¶10

for condonation of delay.

¶11

On 25^th August, 2017, the following order was passed:

¶12

“FPA-FE-43/MUM/2013

¶13

1. As per the provisions of Part XIV of Chapter VI of the Finance Act, 2017 the Appellate Tribunal for Foreign Exchange (ATFE) has been merged with the Appellate Tribunal under the Smugglers & Foreign Exchange Manipulators (Forfeiture of Properties) Act 1976, w.e.f. 26.05.2017. The file in the above said matter has been received by this Tribunal on 1^st July, 2017.

¶14

2. The respondent has filed the Review Application under Section 28(2) (f) of the Foreign Exchange Management Act, 1999 against the order dated 30.03.2016.

¶15

3. The Brief facts are that the Appellant Department had filed an Appeal No. 43 of 2013 against the Order No. SD(A)/FEMA/13/2010-2011 dated 26.03.2013 passed by the Ld. Special Director of Enforcement (Appeals) challenging the

¶16

FPA-FE-43/MUM/2013

¶17

Page 1 of 4

¶18

order along with Application for Condonation of Delay of 84 days.

¶19

4. The Appellant Department also filed another Appeal bearing No.44 of 2013 challenging the Order No.SD(A)/FEMA/11/2010-11 dated 12.03.2013 passed by the Ld. Special Director of Enforcement (Appeals) for condonation of delay of 104 days.

¶20

5. Both the Appeals were on the same grounds and on identical facts and in both the Appeals, the Ld. Special Director of Enforcement (Appeal) had set aside of the order of the Adjudicating Authority.

¶21

6. The contents of the Application for condonation of Delay in both the Appeal Nos. 43/2013 & 44/2013 are same i.e. Para by Para, sentence by sentence and line by line.

¶22

7. Both the applications for condonation were heard on 19.08.2015 when the arguments were advanced by the Appellant Department i.e. at the same time and by same Member of the Tribunal. The Appellant Department had filed written submissions which submissions are also identical.

¶23

8. An Order in respect of an Appeal No.44 of 2013 was passed on 18.12.2015 by the Bench holding that “the Application for condonation of delay is hereby dismissed, resultantly, the appeal filed by the Appellant/Enforcement Directorate also stands dismissed. Copy of the Order be sent to the parties” .

¶24

9. The Order of the Member of Tribunal was awaited in Appeal No.43/2013. However, a letter dated 23.12.2015 was received from by the Bench stating that “the Arguments were heard in the instant Appeal on 19.08.2015 and the order was reserved. However, due to paucity of time, the judgement/order could not be dictated. A need was felt to recapitulate and refresh the arguments”. Therefore, the matter was again listed on 08.02.2016 for rearguments.

¶25

10. The said application in Appeal No.43/2013 was heard on 22.02.2016, however, the order passed by the same Member of the Tribunal on 30.03.2016 whereby the Application for condonation of delay filed by the Appellant Department was allowed and Delay in filing the Appeal was condoned and the matter was listed for further proceedings.

¶26

11. Thus, the respondent has filed this Review Application with a prayer that the Order be reviewed and set aside.

¶27

12. In both cases the application for condonation of delay the grounds were verbatim similar to each others. The averments made in both the Applications are identical. The delay in filing of Appeal No.44 of 2013 is of 104 days and in Appeal No.43 of 2013, the delay is that of 84/90 days.

¶28

FPA-FE-43/MUM/2013

¶29

Page 2 of 4

¶30

13. The reasons for delay were not explained in either of the Application and only the dates of receipt of papers/dispatch of correspondence are shown. Both applications were heard together.

¶31

14. It is a matter of surprise that the order in Appeal No.44 of 2013 came to be passed while dismissing the Application for condonation of Delay and in Appeal No.43 of 2013, the application for condonation of delay is allowed by the same Member. It appears that the order passed in the same application for condonation in the present appeal without consulting the earlier order passed in Appeal No. 44/2013. It is an error on the face of record. No sufficient grounds are shown in both the applications. The order passed in the present appeal on the application for condonation of delay without the application of mind the review petition is allowed by setting up the order dated 30.03.2016.

¶32

15. List the application for condonation of delay for re-hearing on 23^rd October, 2017 at 2.30 p.m. The review petition is accordingly disposed of.”

¶33

The learned counsel for the respondent does not deny the dismissal of the application for condonation of delay in appeal No. FPAFE-44/MUM/2013. She also does not deny that the contents of the application drafted in both the parties FPA-FE-44/MUM/2013 and in the present appeal no. FPA-FE-43/MUM/2013 are identical. The learned counsel for the respondent has stated that the Department has advised the legal department to file the appeal against the order on 18^th December, 2015 in appeal No. FPA-FE-44/MUM/2013, however, nothing has been produced as to whether any appeal was filed or not. More than one year and ten months have been passed. When the application for condonation of delay in appeal no. FPA-FE-44/MUM/2013 was dismissed. The learned counsel for the respondent sought two weeks relevant copy of appeal if any filed alongwith copy of order. I have postponed the Judgement. But despite expiry of two weeks no information was given. Today, I have been informed that no appeal has been filed challenging the order dated 18/12/2015.

¶34

Once the similar application on the same grounds has already been passed by the same Tribunal, I am not inclined to allow the prayer

¶35

FPA-FE-43/MUM/2013

¶36

Page 3 of 4

¶37

made in the application filed in the present appeal. The application for

¶38

condonation of delay is accordingly dismissed.

¶39

Consequently FPA-FE-43/MUM/2013 is also dismissed.

¶40

(Justice Manmohan Singh) Chairman

¶41

New Delhi, 08^th November, 2017

¶42

‘D’

¶43

FPA-FE-43/MUM/2013

¶44

Page 4 of 4

FPA-FE-43/MUM/2013 of Enforcement Directorate v/s Mrs. Monica Rostagno

Case brief

What is this about?

What did the court decide?

FPA-FE-43/MUM/2013 of Enforcement Directorate v/s Mrs. Monica Rostagno

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

All orders in this case

Similar cases