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TMI Blog2024 (7) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany as noticee. Similarly, no Complaint is filed by Deputy Director ED, before the Adjudicating Authority, by impleading M/s Ambidant Marketing Pvt. Ltd. as necessary notice/defendant no.3. The present revision petitions are not maintainable, in absence of any SCN and complaint against the said company. Hence, it was the duty of the appellant ED to file the revision at the initial stage when no complaint is filed against the said company and thereafter, when the show cause notice was issued only to the directors of the said company, but not to their company M/s Ambidant Marketing Pvt. Ltd. After adjudication by the Adjudicating Authority and the passing of the impugned order, appellant ED is not empowered to agitate this issue at belated stage. (2) Even otherwise, appellant ED has not impleaded M/s Ambidant as necessary party/contesting respondent in the present Revision Petition. Hence, no adverse order can be passed in absence of impleading the said company as respondent. (3) Moreover, from the impugned order, it appears that the said M/s Ambidant Marketing Pvt Ltd is incorporated at Dubai, and thus, Appellant ED and Adjudicating Authority cannot exercise its territorial juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ange Managing (Transfer or Issue of any Foreign Security) Regulations, 2004, to the tune of AED 1,47,000/- (equivalent to Rs. 25,72,500/-@ Rs. 17.50 per AED), which is in. ii. Rs. 25,00,000/- (Rupees Fifteen Lakhs only) on Shri Syed Afaq Ahmed i.e. Noticee No. 2, for contravening Section 6(3)(d) of FEMA, 1999 read with Regulation 3 of the Foreign Exchange Managing (Borrowing Lending in Foreign Exchange) Regulations, 2000, to the tune of AED 3,00,000/- (equivalent to Rs. 52,50,000/-@ Rs. 17.50 per AED),. iii. Rs. 2,00,000/- (Rupees Two Lakhs only) on Shri Syed Afaq Ahmed i.e. Noticee No. 2, for contravening Section 4 of FEMA, 1999 read with Regulation 3 of the Foreign Exchange Managing (Foreign Currency Accounts by a Person Resident in India) Regulations, 2015. iv. Rs. 1,50,00,000/- (Rupees One crore Fifty Lakhs only) on Shri Syed Fareed Ahmed i.e. Noticee No. 1, for contravening Section 3(a) Section 4 of FEMA, 1999 read with Regulation 3 of the Foreign Exchange Managing (Foreign Exchange Derivative Contracts) Regulations, 2000, to the tune USD 6,62,146/- (equivalent to Rs. 4,20,46,271/-@ Rs. 63.50 per USD). The seized Indian Currency to Rs. 1,97,03,000/- seized from the possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not able to come immediately; that the company is into the business of commodities trading and real estate; that Mr. Gopi, CA is looking after the account of the company and he is right person to provide details of finance, however the company is having several plans for customers such as; Ultimate plan :- This is a 4 month plan and minimum amount of investment in this plan is Rs.. 50,000/-. In this plan the investor will get 25% of the principal amount on the end of each month along with the profit ranging 0 to 12% of the Principal amount. For investment we were receiving amount in three phases i.e. 1st to 10th, 11 th to 20th, 21 st to 30 th and for that they will be making them payments on 10th20th 30 th respectively. ii. By plan: In this they receive only 65% of price of two wheeler from the customers and after 4 months they provide them a brand newtwo wheelers. iii. Umrah plan:-They receive an amount of Rs. 45,000/- from customers and after four months, they take them to Umrah i.e.. Pilgrimage for Mecca and Medina. iv. Haj Plan:- In this plan customer has to pay Rs. 2,25,000/-, if they book immediately and then they arrange Haj Pilgrimage for them and this amount of Rs. 2,2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uirement of conversion of INR into USD is easily dispensed with. Respondent further stated, that they are earning huge profit by investing in companies/exchanges doing Bitcoins trading, Crypto-currency trading. The respondent also submitted that the transactional details of the block- chain and ledger of accounts held with Unocoin Zebpay. The respondent Syed Afaq Ahmedfurther stated that he floated a company in Dubai and for that he had not taken any approval from the Reserve Bank of India or Govt. of India. The purpose was to promote 4 months ultimate plan of M/s Ambidant Marketing Pvt. Ltd. and the entity was registered in the month of June 2017 in the name style of M/s Ambidant Investment LLC, Dubai, and business was started from September 2017. An account no. 0191 2003 3544 was started with Mesrique Bank on 24/10/2017, in the name of M/s Ambidant Investment LLC, Dubai. This account was basically being used for making and receiving payments in the entity, i.e. M/s Ambidant Investment LLC, Dubai. The entity had two shareholders viz. Shri Jamal Gharib Ali Obaid Alsuwaidi, a UAE resident holding 51% of shares (Shares value of 153,000 AED) and he (Syed Afaq Ahmed)himself was holding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly. Explanation.- For the purposes of this section- (1) company means any body corporate and includes a firm or other association of individuals; and (ii) director , in relation to a firm, means a partner in the firm. Ld. Counsel for the appellant ED submitted that the Ld. Adjudicating Authority failed to consider that the transactions were carried out through the Company namely M/S Ambidant Marketing Pvt. Ltd., however erroneously the said company was never impleaded as a Noticee, nor any show cause notice was issued against the company as mandated u/s 42 of FEMA. Further, Ld. Adjudicating Authority erred that the Respondent were charged under the capacity of Managing Director of the Company, without charging the said Company. He argued that Ld. Adjudicating Authority failed to appreciate the settled legal position as held by Hon'ble Supreme Court of India, whil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this issue at belated stage. (2) Even otherwise, appellant ED has not impleaded M/s Ambidant as necessary party/contesting respondent in the present Revision Petition. Hence, no adverse order can be passed in absence of impleading the said company as respondent. (3) Moreover, from the impugned order, it appears that the said M/s Ambidant Marketing Pvt Ltd is incorporated at Dubai, and thus, Appellant ED and Adjudicating Authority cannot exercise its territorial jurisdiction over the said company. Even otherwise, the alleged contravention was committed by the present respondents in individual capacity. (4) Moreover, the Indian Currency of Rs. 1,97,03,000/- seized by the Officers of ED vide Panchnama dated 04/05.01.2018 from the residential premises of Shri Sayed Fareed Ahmed, is already stands confiscated to the Central Government u/s 13(2) of FEMA, 1999. The question of remanding back the case for imposing penalty on M/s AmbidantMarketing Pvt. Ltd. does not arise. (5) There is nothing on record that ED is able to recover the penalty amount from the present respondents till date, as per impugned order dated 27.03.2018. The present whereabouts of respondents is not traceable and it w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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