M/s. Vikas Watch Manufacturing Electronics and M/s. Shree Exports & Ors. and M/s. Swiss India Electronics & Ors. and M/s. Shree Tirpati Electronics & Anr. and M/s. Sigma Electronics and M/s. Indian Electronics & Anr. and M/s. Intrnational Electronics & Anr. V. Union of India

CW/4301/2004

AI Insights

In a series of writ petitions, various electronic manufacturing companies challenged the validity of Rules 5 & 10 of the Foreign Exchange Management (Adjudication, Proceedings & Appeal) Rules, 2000, specifically contesting the excessive fees that impeded their right to file appeals. The petitioners argued that the fees were prohibitive, effectively denying them access to legal recourse under the Foreign Exchange Management Act, 1999. The court, however, found that the primary issue was not the validity of the rules themselves but the lack of an accessible forum for appeal. The respondents informed the court about a recent notification that established the Commissioner of Income Tax (Appeals), Delhi-35, as the appellate authority for the relevant jurisdiction. The court then allowed the petitioners to file their appeals with this authority, emphasizing that the appeals should be considered on their merits.

• Counselvise Citation: [2016] 140 COUNSELVISE.COM (IT) 803049 (HC-RAJASTHAN)
• Appeal Type: Others
• Pronouncement Date: 09-08-2016
• Assessment Year: misc
• Laws Referred To: Foreign Exchange Management Act, 1999
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: R D RASTOGI; ASHISH KUMAR
• Assessee Lawyers: SAMEER JAIN; MAHI YADAV; JAVED KHAN; PRAGYA SETHIA
• Keywords: Adjudication; Appeal; Foreign Exchange Management; Legal right; Excessive Fee
• Section: 17(1)

Judgement Text

"IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH. O R D E R (1). D.B.Civil Writ Petition No.4301/2004. M/s. Vikas Watch Manufacturing Electronics Vs. Union of India & Anr. (2). D.B.Civil Writ Petition No.2901/2004. M/s. Shree Exports & Ors. Vs. Union of India & Ors. (3). D.B.Civil Writ Petition No.2923/2004. M/s. Swiss India Electronics & Ors. Vs. Union of India & Anr. (4). D.B.Civil Writ Petition No.4300/2004. M/s. Shree Tirpati Electronics & Anr. Vs. Union of India & Anr. (5). D.B.Civil Writ Petition No.4302/2004. M/s. Sigma Electronics Vs. Union of India & Anr. (6). D.B.Civil Writ Petition No.4303/2004. M/s. Indian Electronics & Anr. Vs. Union of India & Anr. (7). D.B.Civil Writ Petition No.4305/2004. M/s. Intrnational Electronics & Anr. Vs. Union of India & Anr. Date of Order : 9.8.2016 HON'BLE MR.AJAY RASTOGI,J. HON'BLE MR.JAINENDRA KUMAR RANKA,J. Mr.Sameer Jain Ms.Mahi Yadav Mr.Javed Khan Ms. Pragya Sethia, counsel for the petitioners. Mr. RD Rastogi, Additional Solicitor General with Mr. Ashish Kumar, counsel for the respondent-UOI. In the present batch of petitions, the petitioners have challenged the validity of Rules 5 & 10 of the Foreign Exchange Management (Adjudication, Proceedings & Appeal) Rules, 2000 inasmuch as, the prescribed fee being excessive deprived the petitioners from filing appeal which is their legitimate legal right conferred by law under the provisions of Act of 1999. After we have heard counsel for the parties, we find that the substantial question was not in regard to the validity of Rules 5 & 10 in reference to the fee being prescribed which is even a very nominal but basic grievance was that there was no Forum of appeal where the person aggrieved can approach under the provisions of the Act, 1999. The respondents have brought to our notice that vide notification dated 05.02.2016 by the Ministry of Finance, Department of Revenue, New Delhi in exercise of powers conferred under Section 17(1) of the Foreign Exchange Management Act, 1999 (FEMA) (in short 'Act of 1999') the appellate authorities has been appointed assigning their respective jurisdiction. As regards Jaipur zone is concerned, the appeal lies before the Commissioner of Income Tax (Appeals) Delhi-35. The notification dated 05.02.2016 is reproduced as under : - “MINSTRY OF FINANCE (Department of Revenue) NOTIFICATION New Delhi, the 5th February, 2016 S.O. 373(E). - In exercise of the powers 7conferred by sub- section (1) of Section 17 of the Foreign Exchange Management Act, 1999 (42 of 1999), and in supersession of the notification published vide number S.O.44(E), dated 8th January, 2008, the Central Government hereby appoints the Special Directors (Appeals) specified in column (2) of the Table below to bear appeals against the orders of the Adjudicating Authorities under the said Act as per jurisdiction specified in column (5) within the zone and sub-zone specified in columns (3) and (4) respectively, in addition to their existing duties with effect from the date of publication of this notification in the official Gazette, namely:-. Commissioner of Income Tax nominated as Special Director (Appeals) for the FEMA case and their jurisdiction. S.No. Special Director (Appeals) Zone Sub-Zone Jurisdiction 1 2 3 4 5 1 Commissioner of Income Tax (Appeals), Delhi -35 Delhi Chandigarh Jaipur Jallandhar Srinagar Dehradun Shimla State of Rajasthan, Uttrakhand, Haryana, Punjab, Himachal Pradesh, Jammu & Kashmir, and Union territory of Chandigarh and National Capital Territory of Delhi 2 Commissioner of Income Tax (Appeals), Kolkata – 23 Kolkata Guwahati Lucknow Patna Bhubaneswar Allahabad Ranchi State of West Bengal, Assam, Meghalaya, Arunchal Pradesh, Sikkim, Nagaland, Manipur, Mizoram, Tripura, Odisha, Bihar, Jharkhand, Uttar Pradesh and Union territory of Andman and Nicobar 3 Commissioner of Income Tax (Appeals), Mumbai – 6 Mumbai Ahmedabad Panaji Surat Nagpur Indore Raipur State of Maharashtra, Goa, Madhya Pradesh, Chhattisgarh, Gujarat, Union Territory of Dadra and Nagar Haveli and union Territory of Daman & Diu. 4 Commissioner of Income Tax (Appeals) Chennai – 5 Chennai Kochi Bengaluru Hyderabad Madurai Kozhikode State of Tamil Nadu, Kerala, Karnataka, Andhra Pradesh and Telangana, Union territory of Puducherry and Union Territory of Lakshadweep” In the light of the present notification dated 05.02.2016, what is being prayed for in the batch of petitions can be examined on merits if appeal is being preferred by the petitioners assailing the order impugned passed by the adjudicating authority. Counsel for the petitioners submits that u/S 17 of the Act of 1999, appeal can be preferred within 45 days of the order impugned and this Court if consider it appropriate the petitioners may be provided reasonable time in affording to file appeal before the concerned/competent appellate authority under its notification dated 05.02.2016. Counsel for the respondents has no serious objection about what is being prayed for. Consequently, the present batch of writ petitions stand disposed of with liberty to the petitioners to file appeal against the order impugned before the competent appellate authority as being notified by the Ministry of Finance, Department of Revenue vide notification dated 05.02.2016 within 45 days from today, and if such an appeal is preferred that may be instituted and be considered on merits in accordance with law. (JAINENDRA KUMAR RANKA ),J. (AJAY RASTOGI),J. N.Gandhi/13-19 "