The High Court lacks the authority to condone delay beyond the statutory period prescribed under FEMA, which excludes the application of Section 5 of the Limitation Act.

1. The Miscellaneous Petition is preferred seeking condonation of delay.

1.1. This petition has been filed on behalf of the Union of India, i.e., Revenue.

1.2. The petition accompanies an appeal preferred under S.35 of the Foreign Exchange Management Act, 1999 ( in short FEMA ).

1.3. The appeal is, presently, at the stage of registration, as the captioned petition is pending consideration of this Court.

2. Notice in this petition was issued on 12.01.2017. Pursuant to which, respondent Nos.1, 5 and 6 have filed their reply. The said respondents have taken an objection to the condonation of delay.

2.1. It is the stand of the respondents that, being a statutory appeal, which provides for a specific period of limitation, this Court would have no jurisdiction to condone the delay.

2.2. It is the submission of the respondents that FEMA is a special statute and, therefore, the provisions of S.5 of the Limitation Act, 1963 , would have no application.

3. As against this, learned counsel for the petitioner / appellant makes a contrary submission. In support of his submission, learned counsel relies upon a judgment of a single Judge of the Delhi High Court dated 06.07.2012, passed in Crl.M.A.No.4671 of 2011 in Crl.A.No.493 of 2011 in the matter of: Kamlesh Ishwarbhai Patel V. UOI & Ors., 2012 (130) DRJ 511 .

3.1. It is the contention of the learned counsel for the petitioner / appellant that the said judgment was rendered in the context of FEMA , where the Court upon placing reliance on the judgment of the Supreme Court in the matter of: Kailash V. Nanhku and Ors. , 2005 (4) SCC 480 , has come to the conclusion that the Court, while, entertaining an appeal under S.35 of , could, in a given case, upon sufficient cause being shown, condone the delay.

4. We must indicate herein that the learned counsel for the aforementioned respondents have cited the following judgments in support of their plea:

(i) Union of India V. Jagdish Prasad Jalan Nandalal , 2012 (286) E.L.T. 525 (Cal.);

(ii) Judgment dated 07.02.2012, passed in Civil Application No.140 of 2010 in Ferast No.22607 of 2010, in the case of Union of India V. Reliance Industries Ltd.;

(iii) Union of India V. Ashok J. Ramsinghani , 2011 (272) E.L.T. 534 (Bom.); and

(iv) M.R. Tobacco Pvt. Ltd. V. Union of India , 2004 (178) E.L.T. 137 (Del.)

5. To be noted, the judgment in the case of: M.R. Tobacco Pvt. Ltd. V. Union of India , 2004 (178) E.L.T. 137 (Del.), which dealt with S.35 of the Central Excise Act, 1944 (in short 'CE Act'), was carried in appeal to the Supreme Court. The Supreme Court dismissed the appeal, via a brief speaking order.

6. Thus, given the objection, we are not required, at this juncture, to deal with the merits of the matter.

6.1. Having regard to the same, we are setting out the dates and events, which are relevant, only in so far as the discussion qua the issue at hand is concerned.

7. The record shows that the impugned order was passed on 22.01.2016 by the Appellate Tribunal for Foreign Exchange (in short 'the Tribunal').

7.1. To be noted, there is nothing on record to show as to when an application for issuance of a certified copy was preferred by the Revenue.

7.2. We are informed that there is no procedure in place for applying for a certified copy and that the same is dispatched by the registry of the Tribunal, as and when it is ready.

7.3. To be noted, learned counsel for the Revenue is also not able to state correctly as to what is the correct date of dispatch by the Tribunal.

7.4. We may only note that the first page of the impugned judgment of the Tribunal carries a stamp, which reads