COVID 19Hot Off The PressNews

Whereas a staff member was reported to have tested positive for Covid-19 on 26th June 2020, which mandated further sanitization and sealing of the premises of this Appellate Tribunal and suspension of work till 3rd July 2020; and

Whereas the Hon’ble Acting Chairperson, Hon’ble Members, Officers of the Registry and the staff of this Appellate Tribunal coming in contact with the affected official, directly or otherwise, were subjected to Covid-19 test after collection of their nasal swabs by a team of Doctors from National Centre for Disease Control (NCDC) on 29th and 30th June, 2020; and

Whereas one of them tested positive; and

Whereas some members of the Staff have come in direct contact with the affected person warranting following of the mandatory norms in terms of the Guidelines issued by the Government, for ensuring personal safety of all concerned and to prevent any peril or hazard to human life it has been decided to extend the suspension of Court work to enable all concerned to observe home quarantine.

It is accordingly notified that the Court work (Virtual hearing) and filing etc. in the NCLAT will remain suspended till 10th July, 2020.


National Company Law Appellate Tribunal

[Notice dt. 02-07-2020]

COVID 19Hot Off The PressNews

Upon requests for urgent listing of cases having been made telephonically to Registrar of this Appellate Tribunal from various persons, who were unable to physically file the same on account of complete lockdown declared by Government with effect from 25th March, 2020.

In view of the above, Bench comprising of Justice Bansi Lal Bhat (Actg. Chairperson) and Justice Anant Bijay Singh] Member (Judicial) and Dr Ashok Kumar Mishra] Member (Technical) takes suo moto cognizance of the unprecedented situation arising out of spread of COVID19 virus declared a pandemic.

Having regard to the hardships being faced by various stakeholders as also the legal fraternity, which go beyond filing of Appeals/ cases, which has already been taken care of by the Hon’ble Apex Court by extending the period of limitation with effect from 15th March, 2020 till further order/s in terms of order dated 23rd March, 2020 in Suo Motu Writ Petition (Civil) No(s).03/2020, inasmuch as certain steps required to be taken by various Authorities under Insolvency and Bankruptcy Code, 2016 or to comply with various provisions and to adhere to the prescribed timelines for taking the ‘Resolution Process’ to its logical conclusion in order to obviate and mitigate such hardships, this Appellate Tribunal in exercise of powers conferred by Rule 11 of National Company Law Appellate Tribunal Rules, 2016 r/w the decision of this Appellate Tribunal rendered in “Quinn Logistics India Pvt. Ltd. v. Mack Soft Tech Pvt. Ltd. in Company Appeal (AT) (Insolvency) No.185 of 2018” decided on 8th May, 2018 do hereby order as follows: –

(1) That the period of lockdown ordered by the Central Government and the State Governments including the period as may be extended either in whole or part of the country, where the registered office of the Corporate Debtor may be located, shall be excluded for the purpose of counting of the period for ‘Resolution Process under Section 12 of the Insolvency and Bankruptcy Code, 2016, in all cases where ‘Corporate Insolvency Resolution Process’ has been initiated and pending before any Bench of the National Company Law Tribunal or in Appeal before this Appellate Tribunal.

(2) It is further ordered that any interim order/ stay order passed by this Appellate Tribunal in anyone or the other Appeal under Insolvency and Bankruptcy Code, 2016 shall continue till next date of hearing, which may be notified later.

The above order is to be circulated to all all benches of NCLT, New Delhi.

In Re Competition Act, 2002, this Appellate Tribunal do hereby order as follows: –

(1) That interim direction / stay order passed in all competition Appeals shall continue until further order.

(2) In the event of expiry of period of Fixed Deposits, the concerned bank shall renew the same for further period of six months.

In Re National Company Law Appellate Tribunal Rules, 2016 do hereby order as follows: –

(1) It is ordered that any interim order/ stay order passed by this Appellate Tribunal in anyone or the other Appeal under the Companies Act, 2013 shall continue till next date of hearing, which may be notified later.

[Suo Moto – Company Appeal (AT) (Insolvency) No. 01 of 2020, Order dt. 30-03-2020]

Case BriefsSupreme Court

Supreme Court: The bench of AM Sapre and Indira Banerjee, JJ has held that the appellate forum for deciding the appeals arising out of the order passed by the Adjudicating Officer under Section 51 of Foreign Exchange Regulation Act, 1973 (FERA) whether filed prior to 01.06.2000 or filed after 01.06.2000 must be the same, i.e., Appellate Tribunal under Foreign Exchange Management Act, 1999 (FEMA)

Going into the legislative intent behind Section 49 (5)(b) of FEMA, that deals with repeal and saving in relation to the action taken and to be taken under FERA, 1973, the Court noticed that the legislature has equated the Appellate Board constituted under FERA with the Appellate Tribunal constituted under FEMA for disposal of the appeals filed under Section 52(2) of FERA against an order passed under Section 51 of FERA which were   pending   before   the   Appellate   Board   which was dissolved on 01.06.2000.  Such appeals stood transferred from the Appellate Board to the Appellate Tribunal for their disposal in accordance with law.

The Court noticed that the Special Director (Appeals) is subordinate in hierarchy to the Appellate Tribunal prescribed under Section 49(5)(2) of FEMA and hence, said that if the argument that the appellate forum in this case for filing appeal is ­ “Special Director (Appeals)” and not the “Appellate Tribunal” under FEMA is accepted, then it will result in anomalous situations which will again be incongruous. The Court explained:

“the orders passed by the Appellate Tribunal in the appeals, which stood transferred to the Appellate Tribunal by virtue of Section 49 (5)(b), are appealable to the High Court under Section 35 of FEMA whereas the orders passed by the Special Director (Appeals) in the   appeals   filed   after   01.06.2000 are not appealable to the High Court under Section 35 of FEMA. So, against the same order, one appellant has a right of appeal to the High Court but the other appellant has no such right of appeal because he suffered   dismissal   of his appeal from Special Director (Appeals) against whose order appeal does not lie under Section 35 to the High Court.”

It was, hence, held that it was not possible to hold that one appeal would be maintainable before the Appellate Tribunal and the other appeal arising out of similar order would be maintainable before the Special Director (Appeals),  who is subordinate in hierarchy to the Appellate Board.  [Union of India v. Premier Ltd., 2019 SCC OnLine SC 95, decided on 29.01.2019]

Case BriefsSupreme Court

Supreme Court: Explaining the scope of the appellate power of the Supreme Court under Section 130E(b)of the Customs Act, 1962, the Bench of Ranjan Gogoi and Ashok Bhushan, JJ enumerated certain conditions that need to be fulfilled before admitting any case under the said provision.

The Conditions are as follows:

  • It is a sine qua non for the admission of the appeal before this Court under Section 130E(b) of the Act that the question raised or arising must have a direct and/or proximate nexus to the question of determination of the applicable rate of duty or to the determination of the value of the goods for the purposes of assessment of duty.
  • The question raised must involve a substantial question of law which has not been answered or, on which, there is a conflict of decisions necessitating a resolution.
  • If the tribunal, on consideration of the material and relevant facts, had arrived at a conclusion which is a possible conclusion, the same must be allowed to rest even if this Court is inclined to take another view of the matter.
  • The tribunal had acted in gross violation of the procedure or principles of natural justice occasioning a failure of justice.

Stating that the above-mentioned list should not be treated to be exhaustive, the Court said that Section 130E(b) of the Act provides for a direct appeal to the Supreme Court against an Order of the appellate tribunal, broadly speaking, on a question involving government revenue. This seems to be in view of the fact that the order that would be under appeal may go beyond the inter se dispute between the parties and effect upon a large number of assessees. The issue, in such an event, surely will be one of general/public importance.

Noticing that Chapter IV of Part V of the Constitution expressly limits the appellate jurisdiction of the Supreme Court to (i) a substantial question of law as to the interpretation of the Constitution, (ii) a substantial question of law of general importance, the Court said that while construing the extent of the appellate jurisdiction to be exercised by the Supreme Court under a statutory enactment, the role of the Supreme Court as envisaged by the Constitution cannot altogether be lost sight of. Hence, the jurisdiction of the Supreme Court under Section 130E(b) of the Act or the pari materia provisions of any other Statute would be in harmony with those contained in Chapter IV of Part V of the Constitution. [Steel Authority of India v. Designated Authority, Directorate General Of Anti-Dumping & Allied Duties, 2017 SCC OnLine SC 409, decided on 17.04.2017]