APPELLATE TRIBUNAL UNDER SAFEMA AT NEW DELHI MP 228A/BOM/2018 (Misc.)

MP-9/BOM/2007 (COD)

MP-10/BOM/2007 (Stay)

FPA-1/BOM/2007 Hirabhai Morarbhai Tandel … Appellant Versus The Competent Authority, SAFEMA, Ahmedabad … Respondent Advocates/Authorized Representatives who appeared For the Appellant : Shri Aseem Thakkar, C.A.

For the Respondent : Shri Karuna Nidhar, Advocate CORAM JUSTICE MUNISHWAR NATH BHANDARI : CHAIRMAN SHRI BALESH KUMAR : MEMBER

FINAL ORDER

03.06.2024 FPA-1/BOM/2007 Thisappeal was earlier dismissed by this Tribunal on

18.03.2008 finding delay of 27 years in filing the appeal. As per Section 12(4) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (in short ‘the Act of 1976), the delay was not condonable beyond a period of

15 days after a period of 45 days for filing an appeal.

2. Going contrary to the statutory provisions, the appellant preferred an appeal before the High Court to challenge the said order. The Gujarat High Court set aside the order of this Tribunal by its order dated 16.07.2008 in Appeal No. 20468/2008.The Gujarat High Court directed the Tribunal to hear and decide the application preferred by the appellant afresh, as well as the stay application, keeping in mind the provisions of sub-rules (7) and (8) of Rule 6 of the Act, for merits and in accordance with the law. The appeal was subsequently posted from time to time before the Tribunal and is now listed before us after the reconstitution of the Tribunal. 3. The learned counsel for the appellant prayed for condonation of delay in the light of the observations made by the High Court and thereupon to decide the appeal on merit. It is submitted that the appellant was not served with the show cause notice, rather he was out of India at the relevant time thus an opportunity of hearing was not given by the Competent Authority, although it was provided under the Act of 1976.

4. The appellant filed a petition before the Gujarat High Court. Gujarat High Court passed an interim order in Appeal No. 20468/2008 against the order of the Competent Authority. However, when the order of the High Court was challenged before the Apex Court, the interim order passed by the High Court of Gujarat was stayed on 25.10.1989. The appellant then withdrew the petition due to the stay granted by the Supreme Court, and accordingly, the stay was vacated.

5. The appellant then filed an appeal against the order passed by the Competent Authority in the year 1980, along with an application for condonation of delay due to litigation before the Gujarat High Court. The prayer is to condone the delay and decide the appeal.

6. The application for condonation of delay has been vehemently opposed by the respondent‟s counsel. It is submitted that, as per Section 12(4) of the Act of 1976, the period for filing the appeal is of 45 days. Beyond this period, the appeal can be entertained 15 days thereafter subject to explanation of delay. There is a statutory restraint on entertaining the appeal beyond 60 days. Therefore, this Tribunal should not exercise this power in contravention of the statutory provision.

7. The Gujarat High Court set aside the earlier order passed by this Tribunal on 18.03.2008 because the specific argument in reference to Section 12(4) was not brought to its notice. The Tribunal was careful in passing the order and for that even quoted Section 12(4).

8. The counsel for the respondent has given reference of the judgment of the Apex Court in the case of Union of India Vs. Popular Construction Co. reported in AIR 2001 SC 4010 to support his argument. It has been held that if special litigation restrictscondonation of delay beyond a period, the general legislation of Limitation Act would not apply. The Courts or for that Tribunal should not entertain the appeal beyond the permissible period. The judgment was given in reference to the similar provision of Section 34 of the Arbitration and Conciliation Act, 1996 (in short ‘the Act of 1996) and cover