Disposed

FPA-FE-26/LKW/2014 of Shri Gyan Swaroop Shukla v/s The Special Director Directorate of Enforcement, Delhi

ATFP15 Feb 2018FPA-FE-26/LKW/2014

Case brief

AI extract

What is this about?

The Tribunal held that appeals against orders by Assistant Directors of Enforcement are not maintainable before the Appellate Tribunal but must lie before the Special Director under Section 17 of FEMA. The appeal was disposed of with liberty to file before the Special Director.

What did the court decide?

The appeal is disposed of. Liberty to file appeal within 45 days is granted.

FPA-FE-26/LKW/2014 of Shri Gyan Swaroop Shukla v/s The Special… — Arbitration | ATFP (2018)

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APPELLATE TRIBUNAL, FOREIGN EXCHANGE MANAGEMENT ACT AT NEW DELHI

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FPA-FE-26/LKW/2014

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Shri Gyan Swaroop Shukla … Appellant Versus The Special Director Directorate of Enforcement, Delhi … Respondent

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Advocates/Authorized Representatives who appeared

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For the appellant	: Shri Varun Mishra, Advocate
For the respondent	: Mrs. Aagam Kaur, Legal Consultant

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CORAM

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JUSTICE MANMOHAN SINGH : CHAIRMAN

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ORDER 15.02.2018

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FPA-FE-26/LKW/2014

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The present appeal has been filed against order No.

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ADJ/12/LZO/2013/AD(SS) dated 28.03.2014 passed by the Ld. Assistant Director of Enforcement, Lucknow/Adjudicating Authority.

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It is argued on behalf of respondent that the said appeal is not maintainable before this Hon‟ble Tribunal vide Section 17(2) of Foreign Exchange Management Act, 1999 (hereinafter referred to as “FEMA”) which reads as under:

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17. Appeal to Special Director (Appeals)-

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(2) Any person aggrieved by an order made by the Adjudicating Authority, being an Assistant Director of Enforcement or a Director (Appeals)

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Paragraph 3 of the Preamble of the said order also specifies the

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forum to which the appeal against the said order lays. The same is retariated as under for the sake of convenience:

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FPA-FE-26/LKW/2014

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Page 1 of 2

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“An appeal against this Order shall lie with the Special Director (Appeals), Commissioner Income Tax VIII (Appeal), D-107, Vikas Bhawan, behind C.R. Building, New Delhi110002, after depositing the amount of penalty imposed, within 45 days from the date on which this Order is served [Refer Section 17 of the Foreign Exchange Management Act, 1999 read with Rule 5 of Foreign Exchange Management (Adjudicating Proceedings and Appeal) Rules, 2000.”

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The Hon‟ble Bombay High Court in the case of Premier Automobiles vs. Union of India has held that:

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“Thus, it is apparent that in consonance with the provisions contained in other statutes, the legislature, on repeal of FERA, did not intend to continue with the single appellate forum provided under FERA against the orders passed by the Adjudicating Authorities under FERA. Accordingly, in the newly enacted FEMA, the legislature provided that appeals against the orders passed by the Adjudicating Authorities such as Assistant Director/Deputy Director of Enforcement should be instituted before the Special Director (Appeals) and appeals against all other Adjudicating Authorities should be instituted before Appellate Tribunal.”

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In view of the above I am very clear that the appeal filed by the appellant before this Tribunal is not maintainable. It should have been filed before the Special Director under the scheme of the Act.

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