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TMI Blog2019 (5) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... ories Ltd. (for short "MLL") for the aforesaid contravention. 3. The respondent has also filed Revision Petition no. 31/2016 under Section 52(4) of FERA, 1973 or under Section 19(6) of FEMA, 199. As per respondent, the penalty imposed was less and it should be enhanced as per the grounds mentioned in the Revision Petition. It is stated on behalf of the respondent that the impugned order was not passed as per law. At the time of hearing, even a suggestion is made on behalf of respondent that the matter should be remanded back for rehearing. Counsel for the appellants is opposing the said request as according to him, no penalty could be imposed in the facts of present case. Even it is very old litigation, his client does not wish to prolong further. It is submitted that let the three matters pending be decided on merit. Therefore, left with no option to decide the matters as per facts and materials available on record. It is argued by the counsel for the appellants that the Revision Petition filed by the respondent is not maintainable. 4. Therefore, by this common order, I propose to decide all the three matters by single order. 5. The brief facts as per the appellant are that - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2000. The SCN relies upon the document listed at Annexure 'A' to the Complaint in support of the charge. 7. MLL duly replied to the SCN and brought to the notice of the ld. Adjudicating authority that it had not violated the provisions of the aforesaid Regulation 4 and, therefore, the SCN was liable to be dropped as against MLL and its CMD, Shri Sushil Suri, as not maintainable as it had filed the return in Form FC-GPR on 24.04.2003 which was within 30 days from the date of closing of the GDR issue. 8. The Adjudicating authority, in para 9 of the impugned Order, held the appellant guilty of contravention of Regulation 4 of the Schedule 1 to the Regulation 5(1) of the FEMA Notification NO. 20/2000-RB dated 03.05.2000 issued under clause (b) of sub-section (3) of Section 6 and section 47 of the FEMA, 1999 and imposed penalty of Rs. 25 lacs on the appellant in terms of section 13 (1) of FEMA, 1999. 9. The SCN set forth the charge of Regulation 4 to Schedule 1 to FEMA Notification No. 20/2000-RB dated 03.05.2000 as if MLL had contravened the entire provisions of Regulation 4 to Schedule 1. It is stated by the appellant that SCN and the impugned Order where the charge has been made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was issued to the appellant on 22/10/2014 after another 5 years from the date of commencement of investigation; that in view thereof, a period of 11 years took to complete the investigation which is testament to tardy investigation on the part of the Directorate. It was submitted that the delay is impermissible and it is a ground to drop the SCN as not maintainable. However, the appellant's submissions supported by judicial precedents as reported in Libord Finance Ltd vs. Whole Time Member, Securities and Exchange Board of India, (2008) 86 SCL 72 (SAT); BhagwandasS.Tolani Vs. B.C. Agarwal & Others, (1983) 12 ELT 44 Bm.; M/s Orient Ship Agency Pvt. Ltd &Anr. v. The Commissioner of Customs &Ors in Writ Petition No. 238 of 2013 were rejected as not sustainable under paras 6.16.1 to 6.16.4.3 of the impugned Order despite the former judgment (Libord Finance Ltd's case) stating as in para 4 that "before concluding, we cannot resist observing that there has been an inordinate delay in initiating action against the appellant. It is alleged to have committed the irregularities in the earlier part of the year 1996 and the show-cause notice was admittedly issued in June 2004. Such delays defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vident from the concluding paragraph (6) of the Complaint where the Complainant concludes as under: "(6) From the foregoing, it is clear that as M/s MLL has not filed the FC-GPR return on 24.04.2003 within 30 days from the date of closing of the GDR issue, M/s MLL is, therefore, chargeable for violation of regulation 4 of the Schedule 1 to FEMA Notification No. 20/2000-RB dated 03.05.200. Mr Sushil Suri, CMD of M/s MLL is also chargeable for violation of regulation 4 of the Schedule 1 to FEMA Notification No. 20/2000-RB dated 03.05.2000 read with Section 42 of FEMA-1999, being the person responsible for conduct of the business of M/s MLL. 16. The investigation has been held only to find out and ascertain whether the appellant had submitted the return in the form FC-GPR to the Reserve Bank of India, Chandigarh and therefore, the appellant had defended his case under submission that it had filed the return in the form of FC-GPR to the Reserve Bank of India, Chandigarh for forwarding the same to Reserve Bank of India, Central Office, Mumbai. A copy of the form FC-GPR submitted to RBI, Chandigarh had been submitted under affidavit during investigation. 17. It is submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regulation 5(1) of FEMA 20/2000-RB dated 03.05.2000 and imposed a total amount of penalty of Rs. 35 lakhs (Rs. 25 lakhs on the appellant company and Rs. 10 lakhs on its CMD). 23. By adding the contravention of the provisions of sub-para (3) which was not there in the complaint/SCN with sub-para (2) of para 4 of Schedule 1 to Regulation 5(1) of FEMA 20/2000-RB dated 03.05.2000, the Adjudicating Authority adjudicated the case of the appellant beyond the SCN which is impermissible. 24. Counsel for the respondent submits that the appellant has no case on merit, however, it is admitted by the counsel for the respondent that in para-9 of the impugned order, the findings are beyond the charge made in the show cause notice. 25. A perusal of para 9 of impugned order under heading ORDER shows that the penalties on the appellants have been imposed without referring to the provisions of sub paras of para 4 of Schedule 1 of which the appellants have been held guilty of contravention of the provisions of each and every sub paras of para 4 of Schedule 1 to Regulation 5(1) in violation of principles of natural justice even if the appellant has no case of merit in this regard. 26. The amount i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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