Judgment : 1. Since the application for condonation filed by the appellant and the appeal is contested by the respondent, I have heard learned Stranding Counsel for the appellant and learned senior counsel appearing for the respondent. 2. The appeal arises under the following circumstances:- The respondent herein was given two separate show cause notices, dated 28.05.2002, to show cause as to why adjudication proceedings under Section 51 of the Foreign Exchange Regulation Act, 1973 (for brevity, “FERA”), should not be held against them for contravention of Sections 8(1) and 9(1)(a) and 14 of the FERA. The said notices were suitably replied to by the respondent, which resulted in two separate adjudication orders, dated 17.04.2009, by the adjudicating authority imposing penalties on the respondent. As against the said orders, two appeals i.e., Appeal Nos.81 and 82 of 2009, were filed by the respondent before the appellate tribunal for foreign exchange. It may be noted that in the meanwhile the FERA was substituted by Foreign Exchange Management Act, 1999 (for short, “FEMA”) and the said later Act was brought into force with effect from 01.06.2000. As provided under the Repeals and Savings under Section 49(3) of the FEMA, the notice of contravention of FERA having been issued within two years of commencing of FEMA was permissible to be continued and adjudicated under the FERA. Thus, in view of the aforesaid provision, therefore, though the contraventions relate to FERA, the adjudicatory process including the appellate forum under the FEMA was available. 3. The Appeals, bearing Nos.81 and 82 of 2009, before the appellate tribunal, as stated above, was adjudicated upon by the order of the Tribunal, dated 21.08.2009, whereby both the appeals were allowed and impugned orders were quashed and set aside. As against the order in appeal No.82 of 2009, the present C.M.S.A. is preferred by the appellant. Since the said appeal was filed on 16.02.2010 under Section 35 of the FEMA, the petitioner also filed an application seeking condonation of delay of 88 days in presentation of the said appeal vide C.M.A.M.P.No.34 of 2010. The said condone delay petition and maintainability of the appeal is in question in the present proceedings. 4. Learned standing counsel for the petitioner places strong reliance upon the affidavit of Assistant Director of Enforcement Directorate filed in support of the application for condonation. The said condone delay petition and maintainability of the appeal is in question in the present proceedings. 4. Learned standing counsel for the petitioner places strong reliance upon the affidavit of Assistant Director of Enforcement Directorate filed in support of the application for condonation. The affidavit states that the certified copy of the order of the appellate tribunal, dated 21.08.2009, was received in the office of the enforcement directorate on 04.09.2009. It is stated that the said order copy was sent to Hyderabad Office on 13.11.2009, which was received in Hyderabad on 24.11.2009 for which the comments from Hyderabad office were sent to New Delhi office on 01.12.2009. Thereafter on 11.12.2009, New Delhi office sent instructions to Hyderabad for filing of appeals, which was received in Hyderabad office on 22.12.2009. It is stated that original certified copy was received in Hyderabad office from New Delhi on 28.12.2009 and the appeal came to be filed on 16.02.2010. The delay aforesaid is, therefore, being explained on account of the circumstances, condonation of delay under Section 5 of the Limitation Act, 1963, (for short, “the Act”) is sought. 5. This application for condonation is opposed by the respondent by filing a counter affidavit, which inter alia states that limitation available for preferring further appeal to this court under Section 35 of the Act is 60 days and further delay of 60 days can at best be condoned by this court under proviso to Section 35. It is, therefore, stated that the present appeal is filed after a delay of 165 days and, as such, it cannot be condoned as Section 5 of the Act is not applicable. 6. Learned senior counsel for the respondent has placed strong reliance upon decision of the Supreme Court in 1) Thirumalai Chemicals Limited vs. Union of India and others ( 2011 (6) SCC 739 ), 2) Full Bench Judgment of High Court of Calcutta reported in Union of India v. Jagadish Prasad Jalan Nandalal (2012 (286) ELT 525 (Cal), 3) Unreported judgment of Division Bench of High Court of Bombay in Union of India vs. Ashok J.Ramsinghani in Civil Application No.177 of 2010 in Fera Appeal (ST) No.27028 of 2010 and 4) Union of India v. S.M.Nagaraj (2006) 129 Comp Cas 526 (Karn). 7. 7. In order to appreciate the issue involved and the transition period between the FERA and the FEMA, particularly, relating to offences allegedly arising under repealed FERA, it is necessary to notice Section 49(3) of the FEMA. “49. (1) …. (2) …. (3) Notwithstanding anything contained in any other law 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 51 of the repealed Act after the expiry of a period of two years from the date of the commencement of this Act.” 8. It is also to be noted that FEMA was enforced from 01.06.2000. Section 35 of the FEMA provides as follows: “35. Appeal to High Court – Any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any question of law arising out of such order: Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days.” 9. In this case, the violation alleged against the respondent is admittedly relating to FERA and in view of the repeal of FERA by the FEMA, only such violations which are otherwise saved under Section 49(3) of FEMA could be continued under FEMA. As would be noticed from Section 49(3) of the FEMA, two years period, which is described as sunset period under the decision of the Supreme Court in Thirumalai Chemicals Limited’s case (1 supra) was available upto 31.05.2002 as FEMA was enforced with effect from 01.06.2000. The notice in the present case alleging violation of FERA was dated 28.05.2002 and as it was within the sunset period, the petitioner could continue the proceedings under FEMA, and there is no controversy in that regard. 10. The subsequent proceedings namely adjudicatory order as well as the appellate order by the tribunal have both being passed under FEMA and since the petitioner/appellant is aggrieved by the order of the appellate tribunal, a further appeal to this court under Section 35 was to be filed within 60 days of communication of the decision. 10. The subsequent proceedings namely adjudicatory order as well as the appellate order by the tribunal have both being passed under FEMA and since the petitioner/appellant is aggrieved by the order of the appellate tribunal, a further appeal to this court under Section 35 was to be filed within 60 days of communication of the decision. In the present case, the communication of the decision of the appellate tribunal admittedly is on 04.09.2009. The limitation for filing appeal under Section 35, therefore, commenced on 04.09.2009 and was available for 60 days thereafter. Under proviso to Section 35, this court could have entertained the appeal if filed beyond the 60 days period provided sufficient cause was established by the petitioner, but the said power of condonation was available for a further period of 60 days and not beyond. An appeal to this Court under Section 35 of FEMA can be entertained, if filed within a maximum period of 120 days of communication of the order of the appellate tribunal. 11. Section 29(2) of the Act reads as follows: “29. (1) …. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the schedule the provisions of Section 3 shall apply as if such period were the period prescribed by the schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as and to the extent to which they are not expressly excluded by such special or local law. “ 12. A conjoint reading of the aforesaid provisions would show that under the special law i.e., FEMA, a separate period for preferring an appeal and for condonation is provided under Section 35 of FEMA, which therefore, automatically excludes application of Sections 4 to 24 of the Act and, therefore, Section 5 of the Act is not applicable and the petitioner/appellant cannot seek condonation of delay of more than 60 days by virtue of the proviso under Section 35 of the Act. 13. 13. In the decision of the Supreme Court in Thirumalai Chemicals Limited’s (1st cited), their lordships have already held that the procedure for filing an appeal being not a substantive right, but is a procedural right, amended provisions may impair such a procedural right and it cannot be said that Section 6 of the General Clauses Act, saves the right to file appeal within a specified period of limitation. The said decision was followed and it was reiterated by the Full Bench of the Calcutta High Court holding that Section 35 of FEMA is a self-contained enactment and was the only source within which the dispute resolution could be found. The language of Section 35 shows the express intention of legislature to exclude Section 5 of the Act. It was, accordingly, held that the said section 5 of the Act was not applicable. 14. The decision of the Division Bench of High Court of Bombay, reference 3rd cited, has also considered this aspect in detail and has come to the same conclusion. The Karnataka High Court in Union of India’s case (4th supra) also came to the same conclusion. 15. It may be mentioned that as against another connected appeal against the common judgment of appellate tribunal, similar C.M.S.A.No.81 of 2013 with application for condonation being C.M.S.A.M.P.No.38 of 2010 was filed before this court. Learned single judge of this court had condoned the delay on 21.09.2013. However, when subsequently the respondent brought the legal position to the notice of his Lordship by an order of the learned single judge in C.M.S.A.M.P.No.147 of 2013, dated 05.12.2013, the order of condonation of delay, dated 21.09.2013, was recalled and the appeal was rejected. 16. In view of that, therefore, I am of the view that the application for condonation filed by the petitioner cannot be sustained and the same is liable to be dismissed. CMSA MP No.34 of 2010 is accordingly, dismissed. Consequently, the CMSA stands rejected. Miscellaneous applications pending, if any, shall stand dismissed. There shall be no order as to costs.