Section 28 FEMA Act 1999: Procedure and Powers of Appellate Tribunal and Special Director (Appeals)

Section 28(1): Procedure and Principles of Natural Justice

This gives the appellate forum procedural flexibility, but not an unrestricted discretion. The requirement of natural justice ordinarily includes a fair opportunity to present the case, an impartial decision-making process and consideration of relevant material before an adverse order is made.

Section 28(2): Powers Comparable to a Civil Court

For discharging functions under FEMA, Section 28(2) confers the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit, but only for the matters specified in the provision:

1. summoning and enforcing the attendance of any person and examining that person on oath;
2. requiring discovery and production of documents;
3. receiving evidence on affidavits;
4. subject to Sections 123 and 124 of the Indian Evidence Act, 1872, requisitioning a public record, document or copy from any office;
5. issuing commissions for examination of witnesses or documents;
6. reviewing its decisions;
7. dismissing a representation for default or deciding it ex parte;
8. setting aside an order dismissing a representation for default or an order passed ex parte; and
9. dealing with any other matter prescribed by the Central Government.

The significance of this sub-section is that the appellate authorities can compel attendance, obtain documentary material, receive affidavit evidence and use other specified procedural tools necessary for effective adjudication.

Section 28(3) and 28(4): Execution of Orders

Order executable as a civil court decree

Under Section 28(3), an order made by the Appellate Tribunal or the Special Director (Appeals) is executable by that authority as a decree of a civil court. For this purpose, the authority has the powers of a civil court.

Transmission to the local civil court

Section 28(4) begins with a non-obstante clause. Despite the direct execution power in sub-section (3), the Appellate Tribunal or Special Director (Appeals) may transmit its order to a civil court having local jurisdiction. That civil court may then execute the order as if the order were its own decree.

Section 28(5): Proceedings Treated as Judicial Proceedings

The current consolidated text of FEMA states that proceedings before the Appellate Tribunal and the Special Director (Appeals) are deemed judicial proceedings for the purposes of Sections 193 and 228 of the Indian Penal Code, 1860. It further states that the Appellate Tribunal is deemed to be a civil court for the purposes of Sections 345 and 346 of the Code of Criminal Procedure, 1973.

This deeming provision gives formal legal consequences to the integrity and orderly conduct of proceedings before the appellate forum.

Key Legal Terms in Section 28 Explained

Current-Law Note: BNS, BNSS and BSA

For present-day legal application, the effect of repeal, savings and corresponding provisions may need to be considered with the new criminal laws and the General Clauses Act, 1897, depending on the proceeding and relevant date.

Practical Effect of Section 28

Section 28 combines flexibility with enforceable adjudicatory powers. The appellate forum is not tied to the complete CPC procedure, yet it can summon persons, call for documents, receive affidavit evidence, review decisions, deal with defaults and ex parte orders, and execute its orders. The statutory requirement of natural justice remains central to the exercise of these powers.

Section 28 should be read with the other adjudication and appeal provisions of FEMA, including the provisions governing appeals to the Special Director (Appeals), appeals to the Appellate Tribunal and appeals to the High Court.