THIRUMALAI CHEMICALS LIMITEDversusUNION OF INDIA & ORS.

                          [2011] 4 S.C.R. 838
                                                                          •
A                THIRUMALAI CHEMICALS LIMITED
                                    v.
                        UNION OF INDIA & ORS.
                (Civil Appeal Nos. 3191-3194 of 2011)

                            APRIL 11, 2011
B
     [R.V. RAVEENDRAN AND K.S. RADHAKRISHNAN, JJ.]

         Foreign Exchange Management Act, 1999 - ss. 19(2)
   and 49 - Cause of action arose when FERA was in force, but
C show cause notices and impugned orders issued when FEMA
   was in force - Appeal filed uls. 19 of FEMA - Rejection of,
  by Appellate Tribunal constituted under FEMA, applying the
  first proviso to sub section (2) of s. 52 of FERA instead of
  following the proviso to sub section (2) to s. 19 of FEMA -
D Held: Limitation for filing appeal has to be considered uls.
   19(2) of FEMA - Provision relating to limitation is procedural
  - In absence of any provision to contrary, the law in force on
  date of initiation of appeal irrespective of the date of ..~crual
  of the cause of action for the original order, would govern the
E period of limitation - Section 52(2) can apply only to an
  appeal to the Appellate Board and not to any Appellate
  tribunal - Therefore, irrespective of the fact that the
  adjudicating officer had passed the orders with reference to
  the violation of the provisions of FERA, as the appeal against
F such order was to the appellate tribunal constituted under
  FEMA, necessarily s. 19(2) of FEMA alone would apply and
  it is not possible to import the provisions of s. 52(2) of FERA
  - Tribunal and High Court misdirected themselves in
  assuming that the period of limitation was governed by s.
  52(2) of FERA - Appellate Tribunal can entertain the appeal
G after the prescribed period of 45 days if it is satisfied, that there
  was sufficient cause for not filing the appeal within the said
  period - Matter is remitted back to the Tribunal for fresh


H                                  838
•      THIRUMALAI CHEMICALS LIMITED v. UNION OF
                     INDIA & ORS.
                                                               839


     consideration - Foreign Exchange Regulation Act, 1973 - ss.      A
     52(2), 8(3) and 8(4) - General Clauses Act - s. 6.

           Substantive law and procedural law - Distinction between
      - Held: Substantive law refers to body of rules that creates,
      defines and regulates rights and liabilities - Right of appeal
                                                                       8
      may be a substantive right but the procedure for filing the
      appeal including the period of /imitation cannot be called a
      substantive right - Aggrieved person cannot claim any vested
      right claiming that he should be governed by the old provision
      pertaining to period of limitation - Procedural law establishes C
      a mechanism for determining those rights and liabilities and
      a machinery for enforcing them - Procedural law is
      retrospective meaning thereby that it would apply even to acts
      or transactions under the repealed Act - Right of appeal
      conferred u/s. 19(1) of FEMA is a substantive right -
      Procedure for filing an appeal under sub-section (2) of s. 19 D
    . as a/so the proviso to sub-section (2) of s. 19 conferring power
      on the Tribunal to condone delay in filing the appeal if
      sufficient cause is shown, are procedural rights.

          Ap~ 1ellant Company imported various consignments           E
     for home consumption and opened letters of credit in the
     year 1996. Thereafter, the Company forwarded the
     Exchange Control Copies of bills of entry (ECC-bills of
     entry) to banks (authorized dealers) for submitting to
     Reserve Bank of India. The authorized dealers did not            F
     forward the ECC bills of entry to RBI. The Directorate of
     Enforcement passed orders imposing penalty on the
     Company for contravention of Section 8(3), Section 8(4)
     of FERA read with sub-sections (3) and (4) of Section 49
     of FERA and issued show cause notices to the Company             G
     as the Company had failed to furnish the required bills/
     information/documents and also held that an appeal
     would lie before the Appellate Tribunal after depositing
     the amount of penalty imposed within 45 days from the
                                                                      H
    840      SUPREME COURT REPORTS              [2011] 4 S.C.R.
                                                                  •
A date on which the order was served. The Company
  informed the Enforcement Directorate that it was due to
  the mistake of the authorized dealer that the bills of entry
  were not forwarded to them in time. Subsequently RBI
  carried out necessary corrections and deleted the entries
B from their records and regularized the transactions and
  requested the Directorate of Enforcement to drop the
  proceedings initiated against the Company. However, the
  Company did not hear anything from the Directorate,
  thus, filed appeals against the said orders in 2004 before
c the Appellate Tribunal for Foreign Exchange with an
  application under Section 5 of the Limitation Act read
  with Section 19 and Section 49(5) (a) of FEMA for
  condonation of delay. The Tribunal applying the first
  proviso to sub section (2) of s. 52 of FERA, dismissed the
D appeals on the ground of delay. The appellant filed writ
  petitions before the High Court for quashing the order
  and the same were dismissed. Therefore, the appellant
  Company filed the instant appeal.

          Disposing of the appeals, the Court
E
       HELD: 1.1 In the instant case, the cause of action
  arose when Foreign Exchange Regulation Act, 1973 was
  in force, but show cause notices and impugned orders
  were issued when Foreign Exchange Management Act,
F 1999 was in force and the appeals were also preferred
  under sub section (1) of Section 19 of FEMA. [Para 11]
  [852-G-H; 853-A]

      1.2 Substantive law refers to body of rules that
  creates, defines and regulates rights and liabilities. Right
G 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
H those rights and liabilities and a machinery for enforcing
•     THIRUMALAI CHEMICALS LIMITED v. UNION OF
                    INDIA & ORS.
    them. Right of appeal being a substantive right always
                                                          841


                                                                 A
    acts prospectively. Every statute is 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        B
    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
    would apply even to acts or transactions under the           c
    repealed Act. Unless the language used plainly manifests
    in express terms or by necessary implication a contrary
    intention a statute divesting vested rights is to be
    construed as prospective, a statute merely procedural is
    to be construed as retrospective and a statute which         0
    while procedural in its character, affects vested rights
    adversely is to be construed as prospective. [Paras 14
    and 16) [855-E-H; 856-D-E]
         Garikapati Veeraya vs. N. Subbiah Choudhry and Ors.
    AIR 1957 SC 540; New India Insurance Company Limited Vs.     E
    Smt. Shanti Mishra (1975) 2 SCC 840; Hitendra Vishnu
    Thakur and Ors. vs. State of Maharashtra and Ors. (1994) 4
    SCC 602; Maharaja Chintamani Saran Nath Shahdeo vs.
    State of Bihar and Ors. (1999) 8 sec 16; Shyam Sundar and
    Ors. vs. Ram Kumar and Anr. (2001) 8 sec 24 - relied on.     F

         1.3 Right of appeal conferred under Section 19(1) of
    FEMA is 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    G
    on the Tribunal to condone delay in filing the appeal if
    sufficient cause is shown, are procedural rights. The
    proviso to sub-section (2) of Section 19 operates
    retrospectively. [Paras 17 and 18] (856-F-H]
        1.4 Law of limitation is generally regarded as           H
    842    SUPREME COURT REPORTS              [2011] 4 S.C.R.    •
A procedural and its object is not to create any right but to
  prescribe periods within which legal proceedings be
  instituted for enforcement of rights which exist under
  substantive law. On expiry of the period of limitation, the
  right to sue comes to an end and if a particular right of
B action had become time barred under the earlier statute
  of limitation the right is not revived by the provision of
  the latest statute. Statutes of limitation are, thus,
  retrospective insofar as they apply to all legal
  proceedings brought after their operation for enforcing
c cause of action accrued earlier, but they are prospective
  in the sense that neither have the effect of reviving the
  right of action which is already barred on the date of their
  coming into operation, nor do they have effect of
  extinguishing a right of action subsisting on that date.
D [Para 19) [857-B-D)

        THE. YOUN (1899) Probate Division p 236; The King
    vs. Chandra Dharma (1905) 2 KB 335; Yew Bon Tew v.
    Kenderaan Bas Mara (1982) 3 All E.R. 833 - referred to.

E       Bennion on Statutory Interpretation 5th Edn.(2008)
    321 - referred to.

       1.5 An accrued right to plead a time bar, which is
  acquired after the lapse of the statutory period, is
  nevertheless a right, even though it arises under an Act
F which is procedural and a right which is not to be taken
  away pleading retrospective operation unless a contrary
  intention is discernible from the statute. Therefore, unless
  the language clearly manifests in express terms or by
  necessary implication, a contrary intention a statute
G divesting vested rights is to be construed as prospective.
  A statute, merely procedural is to be construed as
  retrospective and a statute while procedural in nature
  affects vested rights adversely is to be construed as
  prospective. The manner of filing an appeal, under sub
H
•   THIR.UMALAI CHEMICALS LIMITED v. UNION OF
                   INDIA & ORS.
 section (2) of Section 19 of FEMA and the time within
                                                            843


                                                                   A
 which such an appeal has to be preferred and the power
 conferred on the Tribunal to condone delay under the
 proviso to sub-section (2) of Section 19 are matters of
 procedure and act retrospectively, so as to cover causes
 of action which arose under FERA. Since the appeal was            B
 filed under FEMA with an application for condonation of
 delay such an appeal has to be considered by the
 Tribunal under the proviso to sub-section (2) of Section
 19 FEMA and if the Company shows sufficient cause for
 not filing the appeal in time then the Tribunal can               c
 condone the delay and entertain the appeal, especially
 when there is no accrued right to the respondent to plead
 a time bar. [Para 20] [858-C-H]

      Principles of Statutory Interpretation 12th Edition p 541
 - referred to.                                                    D

       1.6 The appellate Board under FERA, stood
  dissolved and ceased to function when FEMA was
  enacted. Therefore, any appeal against the order of the
  adjudicating officer made under FERA, after FEMA came            E
  into force, had to (?e filed before the Appellate Tribunal
  constituted under FEMA and· not to the Appellate Board
  under FERA. Section 52 of FERA stipulates the limitation
  for an appeal against the orders of the adjudicating officer
  to the Appellate Board. It provides the period of limitation     F
  as 45 days but the Board may entertain an appeal after
  the expiry of 45 days but not beyond 90 days. Under
  FEMA, an appeal lies to the appellate tribunal constituted
  under that Act and Section 19(2) provides that every
  appeal shall be filed within 45 days from the date on            G
  which a copy of the order of the adjudicating authority
  is received. The appellate tribunal is however,
  empowered to entertain appeals filed after the expiry of
. 45 days if it is satisfied that there was sufficient cause for
  the delay in filing the appeal. Though both Section 52(2)        H
    844     SUPREME COURT REPORTS              [2011] 4 S.C.R.


A of FERA and Section 19(2) of FEMA provide a limitation
  of 45 days and also give the discretion to the appellate
  authority to entertain an appeal after the expiry of 45
  days, if the appellant was prevented by sufficient cause
  from filing an appeal in time, the appellate authority under
B FERA could not condone the delay beyond 45 days
  whereas under FEMA, if the sufficient cause is made out,
  the delay can be condoned without any limit. Any
  provision relating to limitation is always regarded as
  procedural and in the absence of any provision to the
c contrary, the law in force on the date of the institution of
  the appeal, irrespective of the date of accrual of the cause
  of action for the original order, would govern the period
  of limitation. [Para 25] [864-B-G]

       1.7 Section 52(2) can apply only to an appeal to the
D appellate Board and not to any appellate tribunal.
  Therefore, irrespective of the fact that the adjudicating
  officer had passed the orders with reference to the
  violation of the provisions of FERA, as the appeal against
  such order was to the appellate tribunal constituted
E under FEMA, necessarily Section 19(2) of FEMA alone
  would apply and it is not possible to import the provisions
  of Section 52(2) of FERA. The concern is with the appeals
  to the Appellate Tribunal, limitation being a matter of
  procedure, only that law that is applicable at the time of
F filing the appeal, would apply. Therefore, Section 19(2) of
  FEMA and not Section 52(2) of FERA would apply. Under
  Section 19(2), there is no ceiling in regard to the period
  of delay that could be condoned by the appellate tribunal.
  If sufficient cause is made out, delay beyond 45 days can
G also be condoned. The tribunal and the High Court
  misdirected themselves in assuming that the period of
  limitation was governed by Section 52(2) of FERA. [Para
  26] [864-H; 865-A-D]

          1.8 Clause (b) of sub-section (5) of Section 49 refers
H
•   IHIRUMALAI CHEMICALS LIMITED v. UNION OF
                  INDIA & ORS.
                                                           845

  to appeal preferred and pending before the Appellate            A
  Board under FERA at the time of repeal. The said clause
  does not specifically refer to appeals preferred against
' adjudication orders passed under FEMA with reference
  to causes of action which arose under FERA. The right
  of appeal under FEMA has already been saved in respect          B
  of cause of action which arose under FERA however,
  subject to the proviso to sub-section (2) of Section 19, in
  the case of belated appeals. Section 49 of FEMA does not
  seek to withdraw or take away the vested right of appeal
  in cases where proceedings were initiated prior to repeal       c
  of FERA on 01.06.2000 or after. On a combined reading
  of Section 49 of FEMA and Section 6 of General Clauses
  Act, it is clear that the procedure prescribed by FEMA
  only would be applicable in respect of an appeal filed
  under FEMA though cause of action arose under FERA.
                                                                  0
  In fact, the time limit prescribed under FERA was taken
  away under the proviso to sub-section (2) of Sectioi:i 19
  and the Tribunal has been conferred with wide powers
  to condone delay if the appeal is not filed within forty-five
  days prescribed, provided sufficient cause is shown.
  Therefore, the findings rendered by the Tribunal as well        E
  as the High Court that the Tribunal does not have
  jurisdiction to condone the delay beyond the date
  prescribed under FERA is not a correct understanding of
  the law on the subject Therefore, the Appellate Tribunal
  can entertain the appeal after the prescribed period of 45      F
  days if it is satisfied, that there was sufficient cause for
  not filing the appeal within the said period. Therefore, the
  orders passed by the Tribunal and the High Court are set
  aside and the matter is remitted back to the Tribunal for
· fresh consideration in accordance with law on the basis         G
  of the findings recorded. [Paras 27 to 29] [865-E-H; 866-
  A-D]

     Anant Gopa/ Sheorey v. State of Bombay AIR 1958 SC
 915; Rao Shiv Bahadur Singh and Anr. vs. State of Vindhya        H
    846      SUPREME COURT REPORTS            [2011] 4 S.C.R.
                                                                 •
A Pradesh AIR 1953 SC 394; State of Punjab v. Mohar Singh
  S/o Pratap Singh AIR 1955 SC 84; T. S. Baliah v. T. S.
  Rangachari, /TO AIR 1969 SC 701; Gajraj Singh and Ors.
  vs. State Transport Appellate Tribunal and Ors. (1997) 1 SCC
  650; Gammon India Ltd. vs. Special Chief Secretary and Ors.
B (2006) 3 SCC 354; Harbanslal Sahnia and Anr. vs. IOC Ltd.
  and Ors. (2003) 2 sec 107; L.K. Verma vs. HMT Ltd. and
  Anr. (2006) 2 SCC 269 - referred to.

                        Case Law Reference:

c         (2003) 2 sec 101            Referred to   Para 9
          (2006) 2 sec 269            Referred to   Para 9
          AIR 1957 SC 540             Referred to   Para 15
          (1975) 2 sec 840            Referred to   Para 15
D
          (1994) 4 sec 602            Referred to   Para 15
          (1999) 8 sec 16             Referred to   Para 15
          (2001) 8 sec 24             Referred to   Para 15
E
          (1899) Probate Division 236 Referred to   Para 20
          (1905) 2 KB 335             Referred to   Para 20
          (1982) 3 ALLER              Referred to   Para 20
F         AIR 1958 SC 915             Referred to   Para 24
          AIR 1953 SC 394             Referred to   Para 24
          AIR 1955 SC 84              Referred to   Para 24

G         AIR 1969 SC 701             Referred to   Para 24
          (1997) 1 sec 650            Referred to   Para 24
          (2006) 3 sec 354            Referred to   Para 24

H
•     THIRUMALAI CHEMICALS LIMITED v. UNION OF                   847
                    INDIA & ORS .
                                  ..

        CIVIL APPELLATE JUR.ISDICTION : Civil Appeal No.                A
    3191-3194 of 2011.

        From the Judgment & Order dated 24.07.2008 of the High
    Court of Judicature at Bombay in Writ Petition Nos. 692, 1528,
    1531 & 693 of 2008.
                                                                        B
         Mohan Jayakar, Uma, Javaid Muzaffar, Umesh Kumar
    Khaitan for the Appellant.

        Vivek Tankha, ASG, T.V. Ratnam, Rahul Kaushik, B.K.
    Prasad, Anil Katiyar for the Respondents.                           c
        The Judgment of the Court was delivered by

        K. S. RADHAKRISHNAN, J. 1. Leave granted~
         2. The question that has come up forconsideration in this      0
    case is whether the Appellate Tribunal constituted under the
    Foreign Exchange Managem·ent Act 1999 (in short FEMA) was
    right in rejecting a belated appeal filed under Section 19 of
    FEMA, applying the first proviso to sub section (2) of Section
    52 of Foreign Exchange Regulation Act 1973 (in short FERA),         E
    instead of following the proviso to sub section (2) to Section
    19 of FEMA.                                         -

         3. M/s Tirumalai Chemicals Limited (in short ·'the
    Company') had import~d various consignments of benezene,
    orthoxalene etc. for home consumption. For the said purpose,        F
    the Company had opened Letters of Credit bearing No.MLCO
    4359096 and No.529/96048( on 28.09.96 and 07.08.96
    respectively on their bankers ICICI Bank and Standard
    Chartered Bank (authorized dealers). By letters dated 07.12.96
    and 18.01.97 Exchange Control Copies of bills of entry (in short,   G
    ECC - bills of entry) in relation to those imports were forwarded
    by the Company to the above mentioned Banks. As per the
    provisions of Exchange Control Manual (in short ECM), the

                                                                        H
    848     SUPREME COURT REPORTS                 [2011] 4 S.C.R.

A authorized dealers had to submit the ECC-bills of entry
  submitted by the importers (the Company) to the Reserve Bank
  of India (in short RBI). The Company was under the bonafide
  impression that the documents submitted by it were forwarded
  by the authorized dealers to the RBI and that the RBI in turn had
B given due intimation to the Enforcement Directorate. The
  Company on 22.04.2004 received a telephonic communication
  from the office of the 3rd respondent viz., Directorate of
  Enforcement, stating that it had passed various orders on
  27.01.04 imposing a total penalty of Rs.9,33,63,453/- on the
C Company on the ground that it had contravened the provisions
  of Sections 8(3), 8(4) of FERA read with sub-sections (3) and
  (4) of Section 49 of FEMA. Copies of the orders dated
  27.01.04 were then received by the Company on 22.04.04 on
  request. From those orders the Company came to know that
  the Directorate of Enforcement had issued four show cause
D notices dated 14.'.05.02 stating that the Company had
  contravened Section 8(3), Section 8(4) of FERA read with para
  7A.20 (Chapter 7) of ECM and was required to show cause
  why adjudication proceedings be not initiated against the
  Company under Section 49 of FEMA for contravention of the
E above mentioned provisions. Further, it was also stated that the
  Company had failed to furnish the required bills/information/
  documents and did not avail of the opportunity of hearing in
  spite of notices issued to them on 29.08.02, 27.10.03 and
  01.12.03. Orders dated 27.01.04 also indicated that an appeal
F would lie before the Appellate Tribunal after depositing the
  amount of penalty imposed within 45 days from the date on
  which the order was served. Reference was also made to
   Section 19 read with Section 49(5)(a) of FEMA.

G        4. The Company on receipt of the above mentioned orders
    dated 27.01.04 approached the authorized dealers and
    enquired whether they had forwarded the ECC of bills of entry
    to the RBI as required under the provisions of ECM. The ICICI
    Bank vide their letters dated 12.05.04 informed the Company
H
•      THIRUMALAI CHEMICALS UMIT;EO v, UNION OF
          INDIA & ORS. [k.S. RAOHAKRISHNAN, J.]
                                                                 849


    that it had received ECC of bills of.entry, oh 20.01.97 with         A
    difference of value. The ICICI Sank thef.IJOrwarded a letter dated
    15.05.04 to the RBI seeking its permission to accept the bills
    of entry stating that the Company had submitted the relevant
    documents on 20.01.97 with shortfall of value, The Standard
    Chartered Bank also vide their letter dated 12.05.04 informed        B
    the RBI that they had also received the Exchange Control Copy
    of bills of entry for the import in question from the appellant
    Company on 09.12.96, but due to an inadvertent mistake had
    reported in their BEF Return that bills of entry were not
    submitted. The RBI vide letter dated nil of May, 2004 sent by        c
    registered AD informed the Enforcement Directorate as
    follows:-

                " ........ Please refer to the> outstanding entries
         reported in their respective :s,E'f $ta_tement by the
         captioned banks in respect o(M/s. T:irnrttatai Chemicals        D·
         Ltd., which was forwarded to y.()u by. u$,Jfl this connection
         we advise that, based on the documents'and evidence
         submitted by authorized dealer, we have deleted the
         entries from our records and regularized the transactions
         at our end as under :-                                          E

         (i) ICICI Bank confirmed that they had received EC copies
         of Bill of Entry in respect of the transactions reported at
         Sr.No.40 and Sr.No.1 of their BEF Statement referred to
         above and the entry at Sr. No.28 of their BEF Statement         F
         was a repetition of entry at Sr.No.40 of the same
         statement.

         (ii) Standard Chartered Bank has also confirmed to us that
         the relative EC copy of the Bill of Entry in respect of the
         transaction reported in their BEF Statement was received        G
         by them ... .".

         5. The Company had also sent a letter dated 17.05.04 to
    the Enforcement Directorate stating that it was not due to the
    mistake of the Company that the ECG :Of bills of entry were not      H
    850       SUPREME COURT REPORTS                 (2011] 4 S.C.R.


A forwarded to the Directorate of Enforcement in time, but due
  to the mistake of the authorized dealer (Bank). RBI had
  subsequently carried out necessary corrections and deleted the
  entries from their records and regularized the transactions and
  requested to drop the proceedings initiated against the
B Company.

        6. The Company stated that it was under the bonafide
  impression that respondents would drop the proceedings since
  RBI had deleted the entries from the records and informed the
  same to the Enforcement Directorate but nothing was heard
C from the Directorate and hence the Company was constrained
  to file appeals against those orders on 02.08.04 before the
  Appellate Tribunal for Foreign Exchange (in short the Tribunal)
  vide Appeal nos. 787, 788, 789 and 790 of 2004 with an
  application under Section 5 of the Limitation Act read with
D Section 19 and Section 49(5) (a) of FEMA for condonation of
  delay.

       7. The Tribunal, however, without going into the merits of
  the case dismissed the appeals on the ground of delay by its
E order dated 25.10.2007. The operative portion of the said order
  reads as follows:-

                " ..... Therefore, these appeals when filed after 90
          days from the date of receipt of the order has to be
          dismissed and the exceeding period cannot be condoned
F         by this Tribunal because of legislative mandate couched
          in clear language.

                For the reasons stated herein above, these appeals
          are dismissed because these appeals have been filed
G         after a total period of 90 days from the date of receipt of
          impugned order beyond which this Tribunal is not
          empowered to condone the delay."

       8. The Company aggrieved by the above mentioned order
H preferred writ petitions nos. 692, 1528, 1531 and 693 of 2008
•     THIRUMALAI CHEMICALS LIMITED v. UNION OF
         INDIA & ORS. [K.S. RADHAKRISHNAN, J.]
                                                                  851


    before the Bombay High Court for quashing the order dated             A
    25.10.2007 of the Tribunal as also the order dated 27 .01.04
    passed by the third respondent contending that the Tribunal was
    not justified in dismissing the appeals on the ground of delay.
    The High Court, however, dismissed all the writ petitions by the
    following order dated 24.07.2008:-                                    B

               "There is no dispute that the appeal was filed beyond
        the period of 90 days. Therefore, the tribunal did not have
        jurisdiction to condone the delay. The learned counsel,
        then, submitted that we should consider these petitions as
        the petitions against the original order.                         C

                In our opinion, it will not be appropriate to entertain
        these petitions as petitions against the original order. The
        Parliament has provided remedy of an appeal against the
        original order and has provided for period of limitation for      o
        filing that appeal. The Parliament has also provided that
        delay beyond a certain period cannot be condoned by the
        Tribunal/Appellate authority. The Petitioners have allowed
        that remedy of appeal to be barred, therefore, now to
        entertain these petitions as petitions against the original       E
        order would amount to permitting the Petitioners to frustrate
        the scheme of the Legislation. The scheme of the statute
        is that a challenge to the original order is to be raised by
        an appeal which is to be filed within a particular period.
        The extra ordinary jurisdiction of this court under the
                                                                          F
        Constitution cannot be permitted to be used by the
        Petitioners. who have allowed their ordinary remedy to be
        barred. Petitions are, therefore, rejected."

         9. Mr. Harish Salve, learned senior counsel appearing on
    behalf of the appellants submitted that the authorized dealer         G
    (Bank) had owned up their mistake and had informed the RBI
    accordingly and hence there was no reason to penalize the
    Company for no fault of it. Learned counsel also submitted that
    the Tribunal had committed a mistake in holding that it had no
    power to condone the delay beyond 90 days. He also submitted          H
    852     SUPREME COURT REPORTS                  [2011] 4 S.C.R.      •
A that even if the Tribunal has no power to condone the delay the
  High Court could have entertained the writ petitions under
  Article 226 of the Constitution of India when the impugned order
  of the Tribunal was manifestly illegal. Learned counsel further
  submitted that in any view of the matter High Court under Article
8 226 of the Constitution of India has the power to condone delay
  in exercise of its extra ordinary jurisdiction and then direct the
  Tribunal to consider the appeal on merits. Reference was made
  to the judgments of this Court in Harbanslal Sahnia & Anr. vs.
  JOG Ltd. & Ors. (2003) 2 SCC 107, L.K. Verma vs. HMT Ltd.
c & Anr. (2006) 2 sec 269.
        10. Shri Vivek Tankha, Learned Additional Solicitor
  General, appearing for the respondents 'feferred to the first
  proviso to sub section (2) of Section 52 of FERA and submitted
  that the Tribunal was justified in holding that it had no power to
D condone the delay beyond a period of 90 days. Ld. ASG also
  submitted that when a party has availed of the statutory remedy
  of appeal and lost on the ground of delay the High Court can
  not exercise its extraordinary jurisdiction under Article 226 I 227
  of the Constitution of India.
E
        11. We are in this case called upon to decide the question
  whether the Tribunal was right in dismissing the appeals
  preferred under Section 19(1) of FEMA, by applying the first
  proviso to sub section (2)of Section 52 of FERA holding that it
  had no power to condone the delay beyond 90 days from the
F date on which the order was served on the person committing
  the contravention. The Tribunal and the High Court proceeded
  on the premises that since the cause of action arose when
  FERA was in force the period of limitation for filing an appeal
  before the Tribunal even after coming into force of FEMA is as
G provided under the first proviso to sub section (2) of Section
  52 of FERA. Admittedly, in this case the cause of action arose
  when FERA was in force, but show cause notices and
  impugned orders were issued when FEMA was in force and
  the appeals were also preferred under sub section (1) of
H
•      THIRUMALAI CHEMICALS LIMITED v. UNION OF
          INDIA & ORS. [K.S. RADHAKRISHNAN, J.]
                                                                  853


     Section 19 of FEMA. Therefore, the important question that         A
    .arises for consideration is whether limitation for filing the
     appeal has to be considered under the proviso to sub section
     (2)of Section 19 of FEMA or under the first proviso to sub
     section ( 2) of Section 52 of FERA. In order to answer the
     above question, it is nepessary to examine the scope and            B
     ambit of Section 52 of FERA, Section 19 , 49 of FEMA and
     Section 6 of the General Clauses Act, 1897.

          12. FERA was enacted to consolidate and amend the law
    relating to certain payments dealing in foreign exchange and c
    securities, transactions indirectly affecting the foreign exchange
    and import and export and import of currency, for conservation
    of foreign exchange resources of the country and proper
    utilization thereof in the interest of economic development of
    the country. Sections 50 and 51 of FERA were the penal
                                                                          0
    provisions which empowered the authority to impose penalty
    on persons who had contravened some of the provisions of the
    Act. An appeal was provided under FERA against the order
    of adjudication before the Foreign Exchange Regulation
    Appellate Board (in short the 'Board') under Section 52 of that E
    Act within a period of 45 days from the date on which the order
    was served on the person committing the contravention. The
    Board was also empowered to entertain any appeal after the
    expiry of the said period of 45 days but not after 90 days from
    the date on which the order was served on the person if it was
    satisfied that the person was prevented by sufficient cause in F
    not filing the appeal in time. It is useful to extract that provision
    for easy reference :-

               52. Appeal to Appellate Board -(1) The Central
         Government may, by notification in the Official Gazette, G
         constitute ,an Appellate Board to be called the Foreign
         Exchange Regulation Appellate Board consisting of a
         Chairman [being a person who has for at least ten years
         held a civil judicial post or who has been a member of the
         Central Legal Service (not below Grade I) for .at least three H
    854       SUPREME COURT REPORTS                   [2011] 4 S.C.R.
                                                                          •
A         years or who has been in practice as an advocate for at
          least ten years] and such number of other members, not
          exceeding four, to be appointed by the Central Government
          for hearing appeals against the orders of the adjudicating
          officer made under Section 51.
B
          (2) Any person aggrieved by such order may, [on payment
          of such fee as may be prescribed and] after depositing the
          sum imposed by way of penalty under Section 50 and
          within 45 days from the date on which the order is served
          on the person committing the contravention, prefer an
c         appeal to the Appellate Board:

          Provided that the Appellate Board may entertain any
          appeal after the expiry of the said period of 45 days, but
          not after 90 days, from the date aforesaid if it is satisfied
D         that the appellant was prevented by sufficient cause from
          filing the appeal in time:

          Provided further that where the Appellate Board is of
          opinion that the deposit to be made will cause undue
E         hardship to the appellant, it may, in its own discretion,
          dispense with such a deposit either unconditionally or
          subject to such conditions as it may deem fit.

                                              "

F      13. FERA was repealed by FEMA which came into force
  with effect from 01.06.2000. Chapter IV of FEMA deals with
  contravention of penalties. Section 13 of FEMA empowers the
  authorized officers to impose penalties for contravention of
  certain provisions of the Act. Failure to make full payment of
G penalty, may attract civil imprisonment subject to the provisions
  of sub section (2) of Section 19. Chapter V of the Act deals
  with adjudication and appeal. Section 19 deals with the appeal
  to the Appellate Tribunal. Sub section (2) of Section 19 says
  that every appeal under sub-section(1) shall be filed within a
H period of 45 days from the date on which the copy of the order
•      THIRUMALAI CHEMICALS LIMITED v. UNION OF
          INDIA & ORS. [K.S. RADHAKRISHNAN, J.]
                                                                 855


    made by the adjudicating authority or the Special Director A
    (Appeals) is received by the aggrieved person. The Appellate
    Tribunal is also empowered to entertain the appeals filed after
    the expiry of the said period of 45 days if it is satisfied that there
    was sufficient cause for not filing the appeal within that period.
    Law is well settled that the manner in which the appeal has to B
    be filed, its form and the period within which the same has to
    be filed are matters of procedure, while the right conferred on
    a party to file an appeal is a substantive right. The question is,
    while dealing with a belated appeal under Section 19(2) of
    FEMA, the application for condonation of delay has to be dealt      c
    with under the first proviso to sub- section (2) of Section 52 of
    FERA or under the proviso to sub section (2) of Section 19 of
    FEMA. For answering that question it is necessary to examine
    the law on the point.
                                                                        D
    Substantive and Procedural Law:

         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 E
    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 F
    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 G
    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.
    856     SUPREME COURT REPORTS                  [2011] 4 S.C.R.
                                                                        •
A       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 vs.
  N. Subbiah Chaudhry & Ors. AIR 1957 SC 540, New India
  Insurance Company Limited Vs. Smt. Shanti Mishra (1975)
B 2 SCC 840, Hitendra Vishnu Thakur & Ors. vs. State of
  Maharashtra & Ors. (1994) 4 SCC 602; Maharaja Chintamani
  Saran Nath Shahdeo vs. State of Bihar & Ors. (1999) 8 SCC
  16; Shyam Sundar & Ors. vs. Ram Kumar & Anr. (2001) 8 SCC
  24, has elaborately discussed the scope and ambit of an
C 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.
D
         16. Therefore, unless the language used plainly manifests
    in express terms or by necessary implication a contrary
    intention a statute divesting vested rights is to be construed as
    prospective, a statute merely procedural is to be construed as
    retrospective and a statute which while procedural in its
E   character, affects vested rights adversely is to be construed as
    prospective.

         17. Right of appeal conferred under Section 19(1) of
    FEMA is therefore a substantive right. The procedure for filing
F   an appeal under sub-section (2) of Section 19 as also the
    proviso to sub-section (2) of Section 19 conferring power on
    the Tribunal to condone delay in filing the appeal if sufficient
    cause is shown, are procedural rights.

G      18. We have already indicated that the proviso to sub-
  section(2) of Section 19 operates retrospectively, but the
  question is in that process, whether it impairs or takes away ·
  any accrued right, to plead a time bar and on facts whether the
  Company has lost its right of appeal to the Tribunal under
H FEMA.
•      THIRUMALAI CHEMICALS LIMITED v. UNION OF
          INDIA & ORS. [K.S. RADHAKRISHNAN, J.]
                                                                    857


    Law of Limitation                                                       A

          19. Law of limitation is generally regarded as procedural
    and its object is not to create any right but to prescribe periods
    within which legal proceedings be instituted for enforcement of
    rights which exist under substantive law. On expiry of the period       8
    of limitation, the right to sue comes to an end and if a particular
    right of action had become time barred under the earlier statute
    of limitation the right is not revived by the provision of the latest
    statute. Statutes of limitation are thus retrospective insofar as
    they apply to all legal proceedings brought after their operation       C
    for enforcing cause of action accrued earlier, but they are
    prospective in the sense that neither have the effect of reviving
    the right of action which is already barred on the date of their
    coming into operation, nor do they have effect of extinguishing
    a right of action subsisting on that date. Bennion on Statutory
    Interpretation 5th Edn.(2008) Page 321 while dealing with
                                                                            0
    retrospective operation of procedural provisions has stated that
    provisions laying down limitation periods fall into a special
    category and opined that although prima facie procedural, they
    are capable of effectively depriving persons of accrued rights
    and therefore they need be approached with caution.                     E

         20. Learned author in order to establish the above
    proposition referred to the decision of the Court of Appeal in
    The Ydun case [THE YOUN (1899) Probate Division at page
    236 (The Court of Appeal) where the Court held that the                 F
    amending legislation dealt with procedure only and therefore
    applied to all actions whether commenced before or after the
    passing of the Act and even in respect of previously accrued
    rights. The principle laid down in 'The Ydun'was applied in The
    King vs. Chandra Dharma (1905) 2 KB 335 and it was held                 G
    that if a statute shortening the time within which proceedings
    can be taken is retrospective then it is impossible to give good
    reason, why a statute extending the time within which
    proceedings be taken, should not be held to be retrospective.
    The Judicial Committee of Privy Council in Yew Bon Tew v.               H
    858       SUPREME COURT REPORTS                  [2011] 4 S.C.R.


A Kenderaan Bas Mara (1982) 3 All E.R. 833, opined that
   whether statute has retrospective effect, cannot in all cases
   safely be applied by classifying statute as procedural or
   substantive and pointed out in certain situation the Court would
   rule against a retrospective operation. Limitation provisions
B therefore can be procedural in the context of one set of facts
   but substantive in the context of different set of facts because
   rights can accrue to both the parties. In such a situation, test is
   to see whether the statute, if applied retrospectively to a
   particular type of case, would impair existing rights and
c obligations. An accrued right to plead a time bar, which is
   acquired after the lapse of the statutory period, is nevertheless
   a right, even though it arises under an Act which is procedural
   and a right which is not to be taken away pleading retrospective
   operation unless a contrary intention is discernible from the
0 statute Therefore, unless the language clearly manifests in
   express terms or by necessary implication, a contrary intention
   a statute divesting vested rights is to be construed as
   prospective. A statute, merely procedural is to be construed as
   retrospective and a statute while procedural in nature affects
E vested rights adversely is to be construed as prospective. The
  manner of filing an appeal, under sub section (2) of Section 19
  of FEMA and the time within which such an appeal has to be
  preferred and the power conferred on the Tribunal to condone
  delay under the proviso to sub-section (2) of Section 19 are
  matters of procedure and act retrospectively, so as to cover
F causes of action which arose under FERA. Since the appeal
  was filed under FEMA with an application for condonation of
  delay such an appeal has to be considered by the Tribunal
  under the proviso to sub-section(2) of Section 19 FEMA and if
  the Company shows sufficient cause for not filing the appeal
G in time then the Tribunal can condone the delay and entertain
  the appeal, especially when there is no accrued right to the
  respondent to plead a time bar. The legal position is
  summarized thus by Justice G.P. Singh in Principles of
  Statutory Interpretation (12th Edition-Page 541) thus:-
H
•     THIRUMALAI CHEMICALS LIMITED v. UNION OF
         INDIA & ORS. [K.S. RADHAKRISHNAN, J.]
                                                                859


        "Statutes of Limitation are thus retrospective in so far as     A
        they apply to all legal proceedings brought after their
        operations for enforcing causes of action accrued
        earlier .... "

         21. We may also examine whether Section 49 of FEMA,            B
    which is the repealing and saving clause, has in any way taken
    away the right of appeal under FEMA for cause of action which
    arose under FERA expressly or by necessary implication and
    also whether it has any effect on the retrospectivity of the
    procedural provision under the proviso to sub-section (2) of        c
    section 19. For easy reference we may extract Section 49 of
    FEMA and Section 6 of the General Clauses Act, 1897.

              "49. Repeal and Saving -(1) The Foreign
        Exchange Regulation Act, 1973 (46 of 1973) is hereby
        repealed and the Appellate Board constituted under sub-         D
        section (1) of section 52 of the said Act (hereinafter
        referred to as the repealed Act) shall stand d.issolved.

        (2) On the dissolution of the said Appellate Board, the
        person appointed as Chairman of the Appellate Board and         E
        every other person appointed as Member and holding
        office as such immediately before such date shall vacate
        their respective offices and no such Chairman or other
        person shall be entitled to claim any compensation for the
        premature termination of the term of his office or of any       F
        contract of service.
                                 '
        (3) Notwithstanding anything cohtained in any other laws
        for the time being in force, no court shall take cognizance
        of an offence under the repealed Act and no adjudicating
        officer shall take notice of any contravention under section    G
        51 of the repealed Act after the expiry of a period of two
        years from the date of the commencement of this Act.

        (4) Subject to the provisions of sub-section (3) all offences
        committed under the repealed Act shall continue to be           H
    860      SUPREME COURT REPORTS                  [2011] 4 S.C.R.
                                                                         •
A         governed by the provisions of the repealed Act as if that
          Act had not been repealed.

          (5) Notwithstanding such repeal, -

                (a) anything done or any action taken or purported
B
          to have been done or taken including any rule, notification,
          inspection, order or notice made or issued or any
          appointment, confirmation or declaration made or any
          licence, permission, authorization or exemption granted or
          any document or instrument executed or any direction
c         given under the Act hereby repealed shall, in so far as it
          is not inconsistent with the provisions of this Act, be
          deemed to have been done or taken under the
          corresponding provisions of this Act;

D               (b) any appeal preferred to the Appellate Board
          under sub-section (2) of section 52 of the repealed Act but
          not disposed of before the commencement of this Act
          shall stand transferred to and shall be disposed of by the
          Appellate Tribunal constituted under this act;
E
                (c) every appeal from any decision or order of the
          Appellate Board under sub-section (3) or sub-section (4)
          of section 52 of the repealed Act shall, if not filed before
          the commencement of this act, be filed before the High
          Court within a period of sixty days of such commencement;
F
          Provided that the High Court may entertain such appeal
          after the expiry of the said period of sixty days if it is
          satisfied that the appellant was prevented by sufficient
          cause from filing the appeal within the said period.
G
          (6) save as otherwise provided in sub-section(3), the
          mention of particular matters in sub-sections (2), (4) and
          (5) shall not be held to prejudice or affect the general
          application of section 6 of the General Clauses Act, 1897
          (10 of 1897), with regard to the effect of repeal."
H
•   THIRUMALAI CHEMICALS LIMITED v. UNION OF
       INDIA & ORS. [K.S. RADHAKRISHNAN, J.]
                                                                861


     Section 6 of the General Clauses Act reads as under:-             A

           6. Effect of repeal - Where this Act, or any [Central
     Act ] or Regulation made after the commencement of this
     Act, repeals any enactment hitherto made or hereafter to
     be made, then, unless a different intention appears, the          8
     repeal shall not -

            (a) revive anything not in force or existing at the time
            at which the repeal takes effect; or·

            (b) affect the previous operation of any enactment         C
            so repealed or anything duly done or suffered
            thereunder; or

            (c) affect any right, privile~e obligation or liability
            acquired, accrued or incurred under any enactment
                                                                       0
            so repealed; or

            (d) affect any penalty, forfeiture or punishment
            incurred in respect of any offence committed
            against any enactment so repealed; or
                                                                       E
            (e) affect any investigation legal proceeding or
            remedy in respect of any such right, privilege,
            obligation, liability, penalty, forfeiture or punishment
            as aforesaid; and

     any such investigation, legal proceeding or remedy may            F
     be instituted, continued or enforced, and any such penalty,
     forfeiture or punishment may be imposed as if the
     repealing Act or Regulation n.ad not been passed."

Repealing and saving clause is a residuary provision which             G
envisages that notwithstanding such repeal of FERA there
would be application of Section 6 of the General Clauses Act
with regard to the effect of repeal Which is discernible from sub
section (6) of Section 49 of the Act.Sub-section (1) of Section
49 of FEMA states that FERA stands repealed and the                    H
   862       SUPREME COURT REPORTS                  [2011] 4 S.C.R. •
A Appellate Board constituted under sub-section (1) of Section
  52 of the said Act stands dissolved. Sub-section (3) of Section
  49 incorporates a sunset clause. The said sub-section begins
  with a non-obstante clause overriding any other enactment and
  states that no court shall take notice of any contravention under
B Section 51 of the repealed Act after the expiry of two years from
  the date of commencement of FEMA on 1.6.2000. Sub-section
  (4) of Section 49 stipulates that subject to the provisions of sub-
  section(3) all offences committed under the repealed Act shall
  continue to be governed by the provisions of the repealed Act
c as if that Act had not been repealed.
        22. Sub-section (5) of Section 49 of FEMA consists of
  three clauses (a), (b) and (c). Clause (a) states that anything
  done or any action taken or purported to have been done or
  taken including any rule, notification, inspection, order or notice
D made or issued or any appointment, confirmation or
  declaration made or any license, permission, authorization or
  exemption granted or any document or instrument executed
  under the repealed act i.e. FERA to the extent they are not
  inconsistent with the provisions of this Act, are deemed to be
E done or taken under the corresponding provisions of this Act.
  The said provision has the effect of incorporating or making a
  general declaration that the existing rules, notifications,
  declarations, authorization and exemptions granted under
  FERA will continue to apply in spite of repeal of FERA and after
F enactment of FEMA as long as they are not in consistent with
  FEMA. Clause (b) of sub-section (5) of Section 49 states that
   any appeal preferred before the Appellate Board under sub-
  section (2) of Section 52 of FERA but not disposed of before
  the commencement of this Act shall stand transferred to and
G shall be disposed of by the Appellate Tribunal constituted under
  this Act. Sub-section (6) to Section 49 of FEMA deals with the
  application of Section 6 of the General Clauses Act. The first
   part of the said sub-section protects the sunset clause and the
   two year limitation period for commencement of proceedings.
H The expression "save as otherwise provided in sub-section (3)"
•     THIRUMALAI CHEMICALS LIMITED v. UNION OF
       ' INDIA & ORS. [K.S. RADHAKRISHNAN, J.]
                                                               863

    protects the sunset clause in spite of second portion of sub-     A
    Section 6 and the second portion of sub-section (6) of Section
    49 expressly makes Section 6 of the General Clauses Act,
    1897 applicable in spite. of repeal of FERA.
          23. Section 6 of the General Clauses Act, 1897 which
                                                                       8
    protects the rights,. obligations and actions and liabilities
    applies in spite of repeal of FERA subject to two years
    limitation period specified in sub-section (3) of Section 49 for
    initiation of proceedings. Therefore, in view of Section 6 of the
    General Clauses Act read with sub-section (3) of Section 49
    of FEMA, proceedings for violation of FERA can be instituted C
    within the sunset period of two years with effect from 1.6.2000
    till 31.5.2002. But for sub-section(3) there will be no limitation
    period of two years in view of Section 6 of General Clauses
    Act, 1897 read with sub-section (4) of Section 49 of FEMA.
                                                                      D
         24. We have dealt with the above mentioned repeal and
    saving clause to highlight the application of Section 6 of the
    General Clauses Act, 1897 which provides that where an Act
    is repealed then unless a different intention appears, the repeal
    shall not affect any right or liability acquired or incurred under E
    the repealed enactment or any legal proceeding initiated in
    respect of such right or liability and the legal proceedings may
    continue as if the repealing Act has not been passed. The
    saving clause thus aimed to preserve the legal effect and
    consequence of things done though those effects and F
    consequences projected at the time when FERA was in force.
    The scope and ambit of such repeal and saving clauses have
    been considered by this Court in various decisions. Reference
    may be made to the decisions of this Court reported in Anant
    Gopal Sheorey v. State of Bombay, AIR 1958 SC 915, Rao G
    Shiv Bahadur Singh & Anr. vs. State of Vindhya Pradesh, AIR
    1953 SC 394, State of Punjab v. Mohar Singh S/o Pratap
    Singh, AIR 1955 SC 84, T.S. Ba/iah v. T.S. Rangachari, /TO,
    AIR 1969 SC 701; Gajraj Singh & Ors. vs. State Transport
A
    864      SUPREME COURT REPORTS                     [2011] 4 S.C.R.

    Appellate Tribunal & Ors. (1997) 1 SCC 650; Gammon India
                                                                             •
    Ltd. vs. Special Chief Secretary & Ors. (2006) 3 SCC 354.

          25. The appellate Board under FERA, it may be noted
    stood dissolved and ceased to function when FEMA was
B   enacted. Therefore, any appeal against the order of the
    adjudicating officer made under FERA, after FEMA came into
    force, had to be filed before the Appellate Tribunal constituted
    under FEMA and not to the Appellate Board under FERA.
    Section 52 of FERA stipulates the limitation for an appeal
C   against the orders of the adjudicating officer to the Appellate
    Board. It provides the period of limitation as 45 days but the
    Board may entertain an appeal after the expiry of 45 days but
    not beyond 90 days. Under FEMA, an appeal lies to the
    appellate tribunal constituted under that Act and Section 19(2)
    provides that every appeal shall be filed within 45 days from
D   the date on which a copy of the order of the adjudicating
    authority is received. The appellate is however empowered to
    entertain appeals filed after the expiry of 45 days if it is satisfied
    that there was sufficient cause for the delay in filing the appeal.
    Though both Section 52(2) of FERA and Section 19(2) of
E    FEMA provide a limitation of 45 days and also give the
    discretion to the appellate authority to entertain an appeal after
     the expiry of 45 days, if the appellant was prevented by sufficient
    cause from filing an appeal in time, the appellate authority
     under FERA could not condone the delay beyond 45 days
F   whereas under FEMA, if the sufficient cause is made out, the
    delay can be condoned without any limit. The question we have
    already pointed out is whether Section 52(2) of FERA or
     Section 19(2) of FEMA will govern the appeal. As noticed
     above, any provision relating to limitation is always regarded
G   as procedural and in the absence of any provision to the
     contrary, the law in force on the date of the institution of the
     appeal, irrespective of the date of accrual of the cause of action
     for the original order, will govern the period of limitation.

          26. Section 52(2) can apply only to an appeal to the
H
•      THIRUMALAI CHEMICALS LIMITED v. UNION OF                   865
          INDIA & ORS. [K.S. RADHAKRISHNAN, J.]

    appellate Board and not to any appellate tribunal. Therefore,         A
    irrespective of the fact that the adjudicating officer had passed
    the orders with reference to the violation of the provisions of
    FERA, as the appeal against such order was to the appellate
    tribunal constituted under FEMA, necessarily Section 19(2) of
    FEMA alone will apply and it is not possible to import the            B
    provisions of Section 52(2) of FERA. As we are not concerned
    with the appeals to Appellate Board, but appeals to the
    Appellate Tribunal, limitation being a matter of procedure, only
    that law that is applicable at the time of filing the appeal, would
    apply. Therefore, Section 19(2) of FEMA and not Section 52(2)         c
    of FERA will apply. As noticed above, under Section 19(2),
    there is no ceiling in regard to the period of delay that could
    be condoned by the appellate tribunal. If sufficient cause is
    made out, delay beyond 45 days can also be condoned. The
    tribunal and the High Court misdirected themselves in assuming
                                                                          0
    that the period of limitation was governed by Section 52(2) of
    FERA.

         27. We have already indicated that clause (b) of sub-
    section (5) of Section 49 refers to appeal preferred and
    pending before the Appellat~ Board under FERA at the time             E
    of repeal. The said clause does not specifieally refer to appeals
    preferred against adjudication orders passect under FEMA with
    reference to causes of action which arose under FERA. We
    have already noticed the right of appeal under FEMA has
    already been saved in respect of cause of action which arose          F
    under FERA however subject to the proviso to sub-section (2)
    of Section 19, in the case of belated appeals.

         28. Above discussion will clearly demonstrate that Section
    49 of FEMA does not seek to withdraw or take away the vested          G
    right of appeal in cases where proceedings were initiated prior
    to repeal of FERA on 01.06.2000 or after. On a combined
    reading of Section 49 of FEMA and Section 6 of General
    Clauses Act, it is clear that the procedure prescribed by FEMA
    only would be applicable in respect of an appeal filed under          H
    866        SUPREME COURT REPORTS              [2011] 4 S.C.R.


A  FEMA though cause of action arose under FERA. In fact, the
   time limit prescribed under FERA was taken away under the
 · proviso to sub-section (2) of Section 19 and the Tribunal has
   been conferred with wide powers to condone delay if the
   appeal is not filed within forty-five days prescribed, provided
B sufficient cause is shown. Therefore, the findings rendered by
   the Tribunal as well as the High Court that the Tribunal does
   not have jurisdiction to condone the delay beyond the date
   prescribed under FERA is not a correct understanding of the
   law on the subject.
c      29. We, therefore, hold that the Appellate Tribunal can
  entertain the appeal after the prescribed period of 45 days if it
  is satisfied, that there was sufficient cause for not filing the
  appeal within the said period. We are therefore inclined to set
  aside the orders passed by the Tribunal and the High Court and
D remit the matter back to the Tribunal for fresh consideration in
  accordance with law on the basis of the findings recorded by
  us. We order accordingly.

           30. The appeals stand disposed of accordingly.

    N.J.                                    Appeals disposed of.