The main legal point established in the judgment is that the right of appeal is a substantive right, while the procedure for filing the appeal, including the period of limitation, is procedural. The judgment clarified the distinction between substantive and procedural rights in the context of filing appeals under FERA and FEMA.

S.P. Garg, J.

1. Crl.A.1503/2011 has been preferred under Section 54 of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as ‘FERA’) against the final order dated 21.08.2009 of Appellate Tribunal for Foreign Exchange, New Delhi in Appeal No. 610/2003. The Appellate Tribunal allowed appeal of the respondent and quashed the adjudication order dated 28.10.2003.

2. The application has been moved for condonation of delay of 775 days in filing the appeal.

CRL.M.A.18825/2011 (delay) in CRL.A. 1503/2011

3. Learned counsel for the appellant (Enforcement Directorate) urged that the Appellate Tribunal’s order dated 21.08.2009 was communicated to the office of the Enforcement Directorate on 17.09.2009. The decision to file appeal was taken at various levels which consumed valuable time. There was no intentional delay on the part of the appellant.

4. I have considered the submissions of the appellant and have examined the record. Apparently, the present appeal has been filed after an inordinate delay of 775 days. Section 35 of FEMA permits the appeal to be filed within 60 days from the date of communication of the decision or order of the Appellate Tribunal on any question of law arising out of such order. The proviso authorises High Courts to extend the appeal to be filed within next 60 days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal. Since the impugned order was passed by the Appellate Tribunal constituted under FEMA, in my view, the provisions of Section 35 of the FEMA are attracted and the period of limitation for filing the appeal cannot be extended beyond 120 days.

5. In ‘Thirumalai Chemicals Limited vs. Union of India (UOI) & ors.’, 2011 (6) SCC 739, the Supreme Court held:

“14. Substantive law refers to body of rules that creates, defines and regulates rights and liabilities. Right conferred on a party to prefer an appeal against an order is a substantive right conferred by a statute which remains unaffected by subsequent changes in law, unless modified expressly or by necessary implication. Procedural law establishes a mechanism for determining those rights and liabilities and a machinery for enforcing them. Right of appeal being a substantive right always acts prospectively. It is trite law that every statute prospective unless it is expressly or by necessary implication made to have retrospective operation. Right of appeal may be a substantive right but the procedure for filing the appeal including the period of limitation cannot be called a substantive right, and aggrieved person cannot claim any vested right claiming that he should be governed by the old provision pertaining to period of limitation. Procedural law is retrospective meaning thereby that it will apply even to acts or transactions under the repealed Act.

15. Law on the subject has also been elaborately dealt with by this Court in various decisions and reference may be made to few of those decisions. This Court in Garikapati Veeraya v. N. Subbiah Choudhry and Ors. AIR 1957 SC 540, New India Insurance Company Limited v. Smt. Shanti Mishra (1975) 2 SCC 840, Hitendra Vishnu Thakur and Ors. v. State of Maharashtra and Ors. (1994) 4 SCC 602; Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors. (1999) 8 SCC 16; Shyam Sundar and Ors. v. Ram Kumar and Anr. (2001) 8 SCC 24, has elaborately discussed the scope and ambit of an amending legislation and its retrospectivity and held that every litigant has a vested right in substantive law but no such right exists in procedural law. This Court has held the law relating to forum and limitation is procedural in nature whereas law relating to right of appeal even though remedial is substantive in nature.

17. Right of appeal conferred under Section 19(1) of FEMA is therefore a substantive right. The procedure for filing an appeal under Sub-section (2) of Section 19 as also the proviso to Sub-section (2) of Section 19 conferring power on