Case BriefsSupreme Court

Supreme Court: The bench of AM Sapre and Indira Banerjee, JJ has held that the appellate forum for deciding the appeals arising out of the order passed by the Adjudicating Officer under Section 51 of Foreign Exchange Regulation Act, 1973 (FERA) whether filed prior to 01.06.2000 or filed after 01.06.2000 must be the same, i.e., Appellate Tribunal under Foreign Exchange Management Act, 1999 (FEMA)

Going into the legislative intent behind Section 49 (5)(b) of FEMA, that deals with repeal and saving in relation to the action taken and to be taken under FERA, 1973, the Court noticed 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   which was dissolved on 01.06.2000.  Such appeals stood transferred from the Appellate Board to the Appellate Tribunal for their disposal in accordance with law.

The Court noticed that the Special Director (Appeals) is subordinate in hierarchy to the Appellate Tribunal prescribed under Section 49(5)(2) of FEMA and hence, said that if the argument that the appellate forum in this case for filing appeal is ­ “Special Director (Appeals)” and not the “Appellate Tribunal” under FEMA is accepted, then it will result in anomalous situations which will again be incongruous. The Court explained:

“the orders passed by the Appellate Tribunal in the appeals, which stood transferred to the Appellate Tribunal by virtue of Section 49 (5)(b), are appealable to the High Court under Section 35 of FEMA whereas the orders passed by the Special Director (Appeals) in the   appeals   filed   after   01.06.2000 are not appealable to the High Court under Section 35 of FEMA. So, against the same order, one appellant has a right of appeal to the High Court but the other appellant has no such right of appeal because he suffered   dismissal   of his appeal from Special Director (Appeals) against whose order appeal does not lie under Section 35 to the High Court.”

It was, hence, held that it was not possible to hold that one appeal would be maintainable before the Appellate Tribunal and the other appeal arising out of similar order would be maintainable before the Special Director (Appeals),  who is subordinate in hierarchy to the Appellate Board.  [Union of India v. Premier Ltd., 2019 SCC OnLine SC 95, decided on 29.01.2019]