Indermeet Kaur, J.:-

1. Present appeal has been filed under Section 35 of the Foreign Exchange Management Act 1999 (hereinafter referred to as the FEMA). It has impugned the order of the Appellate Tribunal for Foreign Exchange dated 26.3.2008.

2. The Adjudicating Authority i.e. the office of the Deputy Director on 30.3.2005 had held the petitioner M.K. Suri, proprietor of M/s. Amit Export guilty of contravention of the provisions of Section 18(2) and 18(3) of the Foreign Exchange Regulation Act 1973 (hereinafter referred to as the FERA). A penalty of Rs. 2,50,000/- had been imposed upon him. While passing the said order sub-clause (iii) of page 1 read as follows:-

"(iii) An appeal against this order shall lie with the Appellate Tribunal of Foreign Exchange, Ministry of Law, Justice & Company Affairs, Government of India, 4th floor, 'B' Wing, Janpath (Indian Oil) Bhawan, Janpath, New Delhi-110001, after depositing the amount of penalty imposed, within 45 days from the date on which, this order is served (Refer Section 19 read with Section 49(5) (a) of the Foreign Exchange Management Act, 1999."

3. Appeal against the impugned order was thereafter preferred before the Appellate Authority i.e. the Appellate Tribunal for Foreign Exchange. Vide order dated 26.3.2008 while confirming the penalty of Rs. 2,50,000/-imposed upon the petitioner the said appeal had been dismissed inter alia on the following ground:-

(i) This appeal is admittedly filed after a delay of one 118 days on 6th September 2005 against an adjudication" order received on 30.3.05. This Tribunal is not allowed to condone delay beyond 45 days by 1st Proviso of Section 52(2) FER Act 1973.

(ii) As this appeal has been filed after expiry of 90 days from the admitted date of service on the appellant, hence, this appeal is required to be dismissed because the delay of more than 90 days cannot be condoned even on sufficient cause as per the legislative scheme. This Tribunal is empowered to grant condonation upon showing of sufficient cause upto 45 days and not beyond that. Therefore, this appeal is liable to be dismissed because the appeal have been filed after an inordinate delay much beyond 90 days with factual delay of 73 days. An order of dismissal of this appeal is accordingly passed.

4. It is clear that it was on the ground of limitation alone that the Appellate Tribunal had not entertained this appeal against the Adjudicating Order.

5. The short submission which has to be considered by this court is Whether the correctness and legality of the order of the Adjudicating Authority dated 30.3.2005 which had become the subject matter of an appeal before the Appellate Tribunal has to be examined under the provisions of the FERA or the FEMA?

6. Admittedly the FEMA was enacted on 1.6.2000; the FERA stood repealed. It is submitted on behalf of the petitioner that after the repeal of the FERA the Appellate Board constituted under Section 52(1) of the said Act stood dissolved; meaning thereby that there was no Appellate Board after 31.5.2002 i.e. the sunset period of two years to be counted from 1.6.2000 in terms of Section 49 of the FEMA which contains the saving clause. Thereafter appeals had to be filed before the Appellate Tribunal which had been constituted under the FEMA and the correctness and the legality of the order under challenge i.e. the order dated 30.3.2005, on which date the FERA stood repealed has to be with reference to the FEMA alone. There is no scope for the application of the provisions of the FERA as it has been repealed for all purposes; this is also clear from the order of the Adjudicating Authority dated 30.3.2005 which had directed the petitioner to prefer the appeal before the Appellate Tribunal with reference to Section 19 and Section 49 (5) of the FEMA. It is submitted that under the provisions of the FEMA, there is a stipulation that the Appellate Tribunal will not hear an appeal against the Adjudicating Order unless a pre-deposit of an amount of Rs. 10,000

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