Allowed

Sunil M.Shah v. the Appellate Tribunal for Foreign Exchange

Bombay HC5 Oct 2007FERA/46/2007

Case brief

AI extract

What is this about?

The High Court held that an appeal under Section 54 of the Foreign Exchange Regulation Act, 1973 lies only on questions of law from final orders under Section 52(3) or (4). Since the impugned order was a discretionary pre-deposit direction under Section 52(2), no appeal lay against it, rendering the appeal not maintainable.

What did the court decide?

Appeal dismissed for want of maintainability; Civil Application declared infructuous and dismissed.

Sunil M.Shah Vs the Appellate Tribunal for Foreign… — Writ and Judicial Review | Bombay HC (2007)

¶1

 (-1-)

¶2

MGN

¶3

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶4

 CIVIL APPELLATE JURISDICTION

¶5

 FERA APPEAL NO.46 OF 2007

¶6

 WITH
 CIVIL APPLICATION NO.4143 OF 2007

¶7

 Sunil M. Shah )
 Sahavas Building, 14/3, )
 Andheri Co-operative Housing )
 Society, Andheri (W), Mumbai-58 )...APPELLANT

¶8

Vs.

¶9

 1.The Appellate Tribunal for )
 Foreign Exchange, Janpath Bhavan )
 Janpath, New Delhi-110 001. )
 2.The Special Director of )
 Enforcement, Janmabhoomi Chambers)
 Walchand Hirachand Marg, )
 Mumbai-400 001. )
 3.Union of India through Ministry )
 of law (Legal and Judicial) )
 Ayakar Bhavan, Marine Line, )
 Mumbai-400 020. )..RESPONDENTS

¶10

 Ms. Mallika Ingale i/b. Tushar V.Shah for the
 Appellant.

¶11

 Mr. R.V. Desai, Senior Counsel with Mrs. S.V.
 Bharucha, Mr. Y.R. Mishra and Mr. Y.S. Bhate
 for the Respondents.

¶12

CORAM: F.I. REBELLO & J.P. DEVADHAR, JJ.
DATE : 5TH OCTOBER, 2007.

¶13

 ORAL JUDGMENT (PER F.I. REBELLO,J.)

¶14

 . The Appellant had preferred an Appeal before

¶15

 the Appellate Tribunal for Foreign Exchange. The
 Tribunal had earlier passed an order on 9th March,
 2006 ordering deposit of Rs.70.00 lakhs. The
 Tribunal, it appears, thereafter reconsidered the
 matter and by its order dated 9th February, 2007

¶16

 (-2-)

¶17

 reduced the amount of pre-deposit to 20% of the
 penalty within 30 days from the receipt of the order
 failing which their Appeal will be dismissed on that
 alone. The Appellant did not deposit the said
 amount and consequently by order dated 29th May,
 2007 the Appeal was dismissed for failure to
 pre-deposit the amount as directed.

¶18

 2. When the Appeal came up for hearing we asked
 the learned Counsel as to how the Appeal was
 maintainable. The learned Counsel contends that the
 Appeal is maintainable in terms of Section 54 of the
 Foreign Exchange Regulation Act, 1973, hereinafter
 referred to as the Act. Learned Counsel also relied
 on the judgment of the learned Division Bench of the
 Karnataka High Court in the case of Mrs. Sudershan
 Boury and Anr. vs. Director of Enforcement, New
 Delhi.

¶19

 3. We have considered the provisions and the
 scheme for preferring an Appeal. Section 52 is the
 power conferred for preferring an Appeal to the
 Appellate Board. Section 52(2) reads as under:-

¶20

 52. Appeal to Appellate Board.__ (2) Any
 person aggrieved by such order may, on
 payment of such fee as may be prescribed
 and, after depositing the sum imposed by way

¶21

 (-3-)

¶22

 of penalty under Section 50 and within
 forty-five days from the date on which the
 order is served on the person committing the
 contravention, prefer an appeal to the
 Appellate Board:

¶23

 Provided that the Appellate Board may
 entertain any appeal after the expiry of the
 said period of forty-five days, but not
 after ninety days, from the date aforesaid
 if it is satisfied that the appellant was
 prevented by sufficient cause from filing
 the appeal in time:

¶24

 Provided further that where the Appellate
 Board is of opinion that the deposit to be
 made will cause undue hardship to the
 appellant, it may, in its own discretion,
 dispense with such a deposit either
 unconditionally or subject to such

¶25

 conditions as it may deem fit."

¶26

 It is thus clear that an Appeal to be properly

¶27

 constituted or maintained, there has to be a
 compliance with the requirement of Section 52(2) of
 the Act, which is by depositing the sum imposed by
 way of penalty unless or an order for dispensing

¶28

 with pre-deposit or such amount as directed by the

¶29

 (-4-)

¶30

 Appellate Board is deposited.

¶31

 . Section 54 reads as under:-

¶32

 "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:

¶33

 Provided that the High Court shall not
 entertain any appeal under this section if
 it is filed after the expiry of sixty days
 of the date of communication of the decision
 or order of the Appellate Board, unless the
 High Court is satisfied that the appellant
 was prevented by sufficient cause from
 filing the appeal in time.

¶34

 Explanation-- In this Section and in Section
 55, "High Court" means --

¶35

 (i) the High Court within the jurisdiction

¶36

 of which the aggrieved party ordinarily
 resides or carries on business or personally
 works for gain; and

¶37

 (-5-)

¶38

 (ii) where the Central Government is the
 aggrieved party, the High Court within the
 jurisdiction of which the respondent, or in
 a case where there are more than one
 respondent, any of the respondents
 ordinarily resides or carries on business or
 personally works for gain."

¶39

 4. The mandate of the Section, therefore, is

¶40

 that an Appeal would lie only in respect of the
 orders passed under sub-sections (3) and (4) of
 Section 52. In order to pass an order under
 sub-sections (3) and (4) there has to be first a
 properly constituted appeal before the Appellate
 Board. If there is no properly constituted Appeal
 the question of the Tribunal addressing itself to
 the legality of the order for the purpose of
 confirming, modifying or setting aside the order
 under sub-sections (3) and (4) would not arise. In
 the instant case, therefore, the Appeal as filed was
 not properly constituted on failure by the Appellant
 to comply with the order of predeposit as envisaged

¶41

 under Section 52(2) of the Act and was not
 maintainable. Section 54 does not provide for any
 Appeal against an order passed under Section 52(2)
 of the Act.

¶42

 4. Before us what the Appellant is seeking to

¶43

 (-6-)

¶44

 challenge is the exercise of the discretion by the
 Appellate Board in exercise of the powers under
 Section 52(2). That is not an appealable order
 under Section 54. Whatever remedy that the
 Appellant may have, no Appeal can lie against that
 order under Section 54. The Appeal therefore, as
 filed would not be properly constituted and would
 not be maintainable.

¶45

 5. We have considered the judgment of the
 learned Division Bench of the Karnataka High Court
 relied upon by learned Counsel. Firstly, the issue
 which has arisen here was not in issue therein. The
 question of law was in respect of the question of
 penalty and the exercise of discretion. In other
 words in a properly constituted appeal, whether
 there was power in the Appellate Court to consider
 the issue of discretion exercised by the Tribunal in
 the matter of penalty.

¶46

 6. We make it clear that if the Appellant has
 any other remedy at law it will be open to him to
 pursue such remedy. As the Appeal is dismissed,
 Civil Application has become infructuous. Civil
 Application dismissed as infructuous.

¶47

(J.P. DEVADHAR, J.) (F.I. REBELLO,J.)

Sunil M.Shah v. the Appellate Tribunal for Foreign Exchange

Case brief

What is this about?

What did the court decide?

Sunil M.Shah v. the Appellate Tribunal for Foreign Exchange

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M/S. Orion Commodities and Services Pvt. Ltd. and Anr. Vs Union of India and Ors.

union of india and Anr. Vs m/s indus ind media communication Pvt. Ltd. and Ors.

commissioner of central excise-thane-i Vs m/s shree ram steel rolling mills

Kantilal M.Jhala Vs Union of India

M/S. Bronze Chem Enterprise Vs Union of India and Ors.

Shankar Dhansing Kayyawale Vs the Regional Caste Verification Committee, Pune and Ors.