sITt'I I{:ID[JGOVERNMENT OF INDIA

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OFFICE OF THE PRINCIPAL COMMISSIONER OF CUSTOMS (AIRPORT & A.C.C):flat oleo urcar, l5/l etrs is, oldor.n- 700001

CUSTOM HOUSE, 15/1 STRAND ROAD, KOLKATA- TOOOOI

?ffia / TELEPHONE : 031-22,13-5372

: 533-23 /2017 Adjn IAP & ACC]

: DRI/KZUlCFllNT-75 /2077 /Enq-so/ zOU /PI.-Sri Ram/4640

:04.L2.201.7

: KoL/CUS/Pr. CoMMIssloNER/APIADMN/oe / 2022

Wtq 6168, Date of order: 37.03.2022frrfq-{ fr1 ftft /Date of Dispat ch: o1.o4.2o22

iqfi/ Passed by Deep Shekhar

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Pr. Commissioner of Customs [Airport & ACC)

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1. T6qfr d€ ilqRdB!frrTfuE:Eqoonl fuqrqrarBmsA frC{6ft.|d fuqTqldrelThis copy is granted free of charge For the private use of the person to whom it is issued.

2. as 3rrari * sfiiqqa at{ tft qR, frqT g.rfi rtlqFqq, ls6zei ERI 12e [q dr{fi{ {s ctTasT A E-c$ o1scr {-d-6, dfrq B-flTE Eq6 cs +dr 6r qfidqsrfYmrur,qdA*qsrRar.iEBsr,zsi a.f,,1se,qT-dT{qrr&qriiqfrq.t-s,atf,fldr14-iqfioorvoarttAny person aggrieved by this order may, Under Section 1-29(A] of the Customs Act,1962, file an Appeal against the order to [a) The Customs, Central Exercise and ServiceTax Appellate Tribunal, East Regional Branch, Bamboo Villa, 7th Floor, 159, A. ). C. BoseRoad, Kolkata-14.

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(b) Such appeal shall be filed within three (3) months from the date of communicationof the order.

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deiq+fralGcrThe appeal is required to be liled as provided in Rule-6 of the Custonts and AppealsRules, 1982 in form C.A.-3 appended to these rules. The appeal should be inquadruplicate and shall be accompanred by:-(al ss BrasT o1 ER qfrqi ffi Et-g qfid E];four copies of the order appealed against;

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a crossed Bank Draft in favour of the Asstt. Registrar of the Bench of the Tribunal or a

branch ofany Nationalised Bank located at a place where the Bench is situated as fee;-(i) qdi crfi-d e .s.dfld qIq-d d Gffi Scr Ee-o +tfM ERT qit rr( {qo qE Wrqefu e.nq.rq i{dqs +t {rRr qia orc qr s€'-Q 6q d, A q-fi 6-qR sw 6-r :

where the amount of duty and interest demanded and penalty levied by any Officer ofCustoms in the case to which the appeal relates, is five lakh rupees or less, onethousand rupees;(ii) q6r qfr-d t rftifta qrrd d frffi frqT {-ffi qlq-+.r$ ERT cit rrq E-d-o. q?i {qMert{ drnq q vdes ol nRi qis drq FW € Gflsfi d trr qErnT 6pgr sw € orRr6 Tfrd Aqiq6qT{dw6r :

where the amount of duty and interest demanded and penalry levied by any officer ofCustoms in the case to which the appeal relates is more than five lakh rupees but notexceeding fifty lakh rupees, five thousand rupees;(iii) qdr Btfl-d t SdfYd qrrra A E S SrTr Eqo vf}s.rt em uit qq {q6 qd qqTqerh errs qs i{{6s o1 {rRr qqm f,rs sw e Brfu6 d, d eq EqR Tw o.rwhere the amount of duty and interest demanded and penalty levied by any officer ofCustoms in the case to which the appeal relates is more than fifty lakh rupees, tenthousand rupees.4 flqfi-d d {fu{^cR qr tsTS 6Rr qq €.iE fr qTf}-ed B+lffi d qcer qfid q+qq'rcd 01 qrqfr o{tror {Bqq{ qT qS €tfffi d rrq dtrEd sro € 0-fr qrsrfr

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The appeal shall be presented in person to the Registrar of the Bench or an Officerauthorized in this behalf by him or sent by Registered Post addressed to the Registraror such officer.s. {fl.ftufq qr srecr d fr-s-e Grfi-d o-{i $ qqq6 WR o1 rltrd d+ ilfi qirT fuqrrErr wf, qT drTl.iII lql s{d(s qrrT 6-t;rr drn 3i{ q{-d a erq ts uftTH 6r sTetq

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Any person desirous of appealing against this order or decision shall, pending theappeal, deposit this duty demanded or the fine, penalry levied therein and produceproof of such payment along with the appeal failing which the appeal is liable to beejected for non- compliance with the provisions of Section 129E the Customs Act,1962.

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2. Based on the above said specific information and intelligence input, a team ofofficers of DRI, KZU proceeded to ACC, Kolkata in the late afternoon of 05.06.2017and identified a series of import consignments in respect of which Bills of Entry(BoEs) had been filed by the CHA.

3. The instant notice deals with three such consignments imported by M/s SushilKumar Singh (hereinafter referred to as the Importer), Proprietor: Sri Ram Traders,28 Jhill Road, Cossipur, Kolkata-700 002 (IEC No. 0206016417) under two BoE Nos.9948788 and 9948804 both dated O3|O6/2OL7. The Customs Broker (CB) wasM/s Sadguru Forwarders Pvt. Ltd., represented by Shri Aloke Ghosh (G-Card Holder)and Late Shri Sukhendu Maity (Authorised Signatory of the CB) who submitted CheckLists pertaining to the said BoEs along with copies of related invoices, Packing Listsand Air Way Bills.

4. During preliminary investigation it was learnt that a third consignment underAir Way Bill (AWB) No. 21715543404 dated 05.06.2017 related to the saidImporter had also arrived at ACC, Kolkata on 05.06.2017, but no BoE had been filedtill the DRI, KZU intervention.

5. All the three consignments imported by the Importer were detained by DRI,KZU officers for detailed examination. Examination of the aforementioned threeconsignments were carried out by DRI, KZU officers on 21.06.2017. 22.06.2077 and21.07.2017 respectively.

Consignment wise investigation is summarized as under:

1. Consignment under BoE No. 994878a dated 03,06.2017r

6.1.1.Information obtained from the Customs Authority:

It was found from the Customs Authority in ACC, Kolkata that a BoE No.9948788 had been filed by the CHA on behalf of the Importer on 03.06.2017,

6

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*"d=;"-.qSCN: DRI/ KzU /CF/INT-7,/ Pt. Sri Ram/464O dtd 4.72.77 Page 1 bf145

F.No.533 2 3/2Cl / ADrN (A&A)

Orcler-in-Origirr:rl

Subject: Customs Offence imDort of (i) Mobr e Phone Accessories, (ii) BrandedShoes, (iii) Wrlst Watches of Different lnternational Brand, (iv) Brandedhigh-end moblle phones in two Bills of Entry Nos. 9948788 and9948804 both dated 03l06/2017 and one Air Way Bill No.2L7155434O4 dated 05.06.2017 by M/s Sushil Kumar Singh (IECNO. 02060164t7) - gross mis-declaration with an intent to evadeCustoms duty-Adjudication thereof

Brief Facts:

Specific information was received in the office of Directorate of RevenueIntelligence, Kolkata Zonal Unit, Kolkata (hereinafter referred to as DRI, KZU) to theeffect that some firms were engaged in import of different contraband and highvalued items from Dubai and Hong Kong resorting to undervaluation andmisdeclaration through Air Cargo Complex, Netaji Subhas Chandra Bose InternationalAlrport, Kolkata (hereinafter referred to as ACC, Kolkata) and some similarconsignments landed at ACC Kolkata were waiting for clearance from Customs.Intelligence further indicated that one Customs House Agent. M/s. SadguruForwarders Pvt. Ltd (hereinafter referred to the CHA) was actively conniving withthe unscrupulous firms to defraud the exchequer and bypass the Law of the land.

F-No- 533- 2312017 ADIN (A&A)

declaring the goods as unbranded Mobile Accessories/ Hands Free/ TemperedGlass/Housing/LCD etc.

It was also learnt from scrutiny of EDI BoE that the Total Assessable Value ofthe consignment was Rs. 4,33,603/-, Total No. of packages: 153. Gross weight3005 Kgs. The said BoE was assessed by the Appraising Officer on 03.06.2017at 14.59 Hours and the Import Shed Examiner had given Examination report at15.35 Hours on 05.06.2017 in compliance with the Examination order given bythe Appra ising Officer.

Importer copy of BoE No. 9948788 dated 03.06.2017 was obtained from ShriAloke Ghosh, G Card holder of the CHA along with the following documents:

a) Checklist for the BoE

c) Two copies of Invoice No. ZFT-995 I L7-La dated O1.06.2017showing the Country of Origin (COO) as China and the goods as Back cover,Tempered glass, Cable wire, hands free, Housing (branded), LCD1.5",LCD3.5"and LCD combo 4" at Sl Nos. 1-B respectively. The total No. of Cartons is 153and the invoice value is USD 5768.10. The Term of Delivery was CIF. Theinvoice was issued by M/s. Zhenda Foreign Trade HK Ltd, Room 1506-1508,15/F Laws Commercial Plaza, 788 Cheung Sha Wan Road, Kowloon, Hong Kongand the Consignee as well as Buyer was shown as M/s Sri Ram Traders. MakanNo. D498, Gali No. 4, Rajeev Colony, Old Kundali, Delhi-110098.

d) Delivery Order No. 0O5474/2Ot7 dated 05.06.2017 issued by CathayDragon Airlines at 10.45 Hrs on 05.06.2017 to the Commissioner of Customs,International Cargo Complex,NSCBI Airpoft, Kolkata-700 052 authorising themto deliver the said cargo to one M/s NAF Logistics Private Ltd.

e) Copy acknowledging the receipt of Terminal Storage andProcessing Charges for the said consignment released by Airports Authorityof India vide TSP No. 8201706050090 issued on 05.06.2017 at 13.11 Hoursand Gate Pass bearing G.P.No. N210706050070 dated 5.06.2077 at about15.59 Hours.

05.06.2017

6.1.3. Detailed Examination by DRI, KZU

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rt%i1lPage 2 oSCN: DRI/ KzU /CF/INT-75/ Pt. Sri Ram/4640 dtd 4.72.77

Out of Charge (OOC) was not given in EDI system for the said BoE at the timeof DRI's Intervention.

6.1.2.Information obtained from the CHA:

b) Consignor copy (in Original) and a copy of House Air Way Bill(HAWB) issued by M/s Shipair Express (HK) Limited under Air Way Bill (AWB)No. 16083695684 dated 03.06.2017 at Hong Kong, showing Shipper as M/s.Zhenda Foreign Trade HK Ltd., Room 1506-1508, 15/F Laws Commercial Plaza,788 Cheung Sha Wan Road, Kowloon, Hong Kong, Consignee as M/s Sri RamTraders, Makan No. D498, Gali No.4, Rajeev Colony, Old Kundali, Delhi-110098.

6.L.2.L, From the Impofter copy of BoE, it was observed that the saldconsignment was examined by Customs on 05.06.2017 and was also given OOC on

F. No. 533'23/2017 ADIN (A&A)

6.1,3.1, 100o/o examination of the consignment by DRI, KZU was recorded videPanchanama proceedings dated 21.06.2017 and brlef inventory of the goods found inthe consignment is as below:

Sl. No. Good sDescript

Brandton

Qtv Seizure Value (inRs.

1 Wrist Watch Ca rtie r 1 1199554940

CarreraBurberryWrist Watch

Wrist Watch1

1

2

3

4 Wrist watch Emporio Armani 6 t123745 1 590706

Wrist WatchWrist Watch

GucciMichael Kors 363 t799295

7 Wrist watch Longines 3 4020001B Wrist Watch 6999

Wrist Watch Mont Bla nc a utomatic 1 27t7349

wrist Watch Omega11. Wrist Watch Patek Phlllppe 2 30000012. Wrist Watch Piaget 5 1309285

8 52000013. Wrist Watch RadoRolex14. Wrist Watch

wrist watch Tissot 3 5848015iPh one Apple BO 4139920

20 11980Battery Charger Sa msu ngSa msu ng,Lenovo,

HTC, MI3290 8905 5018 Data Ca ble

Lenovo, Oppo, Vivo,Samsung, Apple,Sony, HTC

46tO 342074019. Ear Phone

920 254284020. StereoHead FM

PhoneSony, lBL, Samsung

HTC, OPPO 820 1935402t. Charger AdapterHfC/ Samsung/ Ml/LG/ Nokia with/without battery

1862528822 lYobile Phone

552r6Apple B423. iPad flip cover2333 3631000I\40bile Phone LCD24.120 41880LeTV cha rg er LETV25.9t423 1235805026 Mobile Phone Back

15000060027. oTG cutting Ferule28. Power Bank

125000USB Charger29119970030 Other M isc Goods

Total

l

6.1,3.2. From the Panchanama proceedings as above, Import Documentsobtained from the CHA and information retrieved from Customs EDI system, it wasseen that the said BoE was found assessed, examined as per examination instructionto examine 57o packages and given "OOC" by Customs on 05.06'2017 beforeintervention by DRI, KZU. During the 100o/o examination by DRI, KZU it wasrecorded in the Panchanama proceeding that only two packages were found to havebeen opened earlier.

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27 6120870

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11089

5 3995500

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F.No. S33 2312017 AD]N (A&A)

6.1.3.3. During the 100o/o examination by DRI, KZU, it was found that a numberof items like branded watches, branded mobile phones, branded head phones werenot declared in the said BoE. Against the declared value of Rs. 4,29,310.29, theascertained value of the goods actually found in the said consignment was found tobe Rs. 7.90 Crores as detailed in the Panchanama proceedings, making theattempted undervaluation in the said consignment to the tune of 1/200th of theascertained va lue.

6,1.3.4. After examination, as the goods in the consignment of 153 packageswere found to have been mis-declared, the consignment under the BoE No. 994B7BBdated 03.06.2017 had been seized u/s 110 of the Customs Act, 1962 by DRI, KZU onthe reasons to believe that the same were liable to confiscation u/s 111 of theCustoms Act, 1962 and copy of Seizure list and Inventory of the seized goods werehanded over to Shri Aloke Ghosh, G Card holder of the CHA.

6.2, Consignment under BoE No. 99488O4 dated 03.06.2017:

5,2.1.Information obtained from the Customs Authorityr

It was found from the Customs Authority in ACC, Kolkata that a BoE No.9948804 had been filed by the CHA on behalf of the Importer on 03.06.2017,declaring the goods as shoes without the mention of any brand.

It was also learnt from scrutiny of EDI BoE that the Total Assessable Value ofthe consignment was Rs. 5,53,O43/-, Total No. of packages: 110, Gross weight1861 Kgs. The said BoE was assessed by the Appraising Officer on 03.06.2017at 15.01 Hours and Examination order for 5Yo of the consignment was given.However, no entry regarding examination for the said BoE was observed.

Out of Charge (OOC) was not given in EDI system for the said BoE at the tlmeof DRI's Intervention.

Importer copy of BoE No. 9948804 dated 03.06.2017 was obtained from ShriAloke Ghosh, G Card holder of the CHA along with the following documents:

a) Checklist for the BoE

b) Consignor copy (in Original), Cargo manifest filed by M/s Shipairexpress (HK) Ltd under Master AWB No. 17654035881 & a copy of HAWB No.SE 96537 for 110 packages consigned to M/s. NAF Logistics showing thedescription of the goods as Shoes and showing the Shipper's name as M/s'Zhenda Foreign Trade HK Ltd., Room 1506-1508, 15/F Laws Commercial Plaza,788 Cheung Sha Wan Road, Kowloon, Hong Kong, Consignee as M/s Sri RamTraders, Makan No. D498, Gali No.4, Rajeev Colony, Old Kundali, Delhi-110098.

c) Two copies of Invoice No, ZFT-998 /17-La dated 3O.O5.2O17showing the Country of Origin (COO) as China and the goods as Shoes(footwear). The total No. of Cartons is 110 and the invoice value is USD 5586.The Term of Delivery was CIF. The invoice was issued by M/s. Zhenda ForeignTrade HK Ltd, Room 1506-1508, 15/F Laws Commercial Plaza, 788 CheungSha Wan Road, Kowloon, Hong Kong and the Conslgnee as well as Buyer wa5

SCN: DRI/ KzU /oF/INT-7|/ Pt. sri Ram/464O dtd 4.72.77 Page 4 of145

tt,"::$

5.2.2.Information obtained from the CHA:

F.No. 533 2312017 ADJN (A&A)

D498, Gali No. 4, Rajeev Colony,shown as M/s Sri Ram Traders, Makan NoOld Ku ndali, Derhi- 1 10098,

6.2.3. Detailed Examination by DRI, KZU

6.2.3.1. 100o/o examination of the consignment by DRI, KZU was recorded videPanchanama proceedings dated 22.06.2017 and brief details of inventory of thegoods found in the consignment is as below:

Description ofGood s

the Brand Country of Value (inOri tn Rs,

2952 72632400Sneaker/ Sports(Size-Assorted)

Shoe I Nlkg

Sneaker/ Sports Shoe(Size-Assorted)

6.2.3,2. From the Panchanama proceedings as above and Import Documentsobtained from the CHA and information retrieved from Customs EDI system, it wasseen that the said BoE was found assessed with an examination instruction toexamine 5olo packages given on 03.06.201,7 at 15.01 hours and was marked forregistration at ACC, Kolkata before intervention by DRI, KZU. Also as per declaration,the consignment under BoE No. 9948804 dated 03.06.2017 was supposed to contain2763 pairs of unbranded shoes. During the 100% examination by DRI, KZU it wasrecorded in the Panchanama proceeding that only two packages were found to havebeen opened earlier.

6,2.3.3. During the 1007o examination by DRI, KZU, it was found that asopposed to 2763 pairs of shoes declared, actually 3960 pairs of shoes were foundand all shoes were branded either "Nike" or "Adidas" which were not declared In thesaid BoE. Against the declared value of a mere Rs. 5,47 ,567 .65. the ascertainedvalue of the goods actually found in the said consignment was found to be Rs. 1.95Crores as detailed in the Panchanama proceedings dated 22.06.20t7, making theattempted undervaluation in the said consignment to the tune of 1/40th of theascertained value.

It was found from the Airports Authority of India in ACC, Kolkata thatanother consignment related to the Importer had landed at NSCBI Airport on05.06.2017. On perusal of copy of AWB No. 21715543404 lcopy 5 (forDestination Airport)l issued by Thai Airways, it was observed that the Shipperhad been shown as M/s. Zhenda Foreign Trade HK Ltd., Room 1506-1508,15/F Laws Commercial Plaza, 788 Cheung Sha Wan Road, Kowloon, Hong Kong

1 Vietna m

2 Vietnam 1008

Total 3960 L95444()()

SCN: DRI/ KzU /CF/INT-75/PI. Sri Ram/464O dtd 4.72.77 Page 5 of 145

6,2.3.4. After examination, as the goods in the consignment of 110 packageswere found to have been misdeclared, the consignment under the BoE No. 9948804dated 03.06.2017 had been seized u/s 110 of the Customs Act, 1962 by DRI, KZU onthe reasons to belleve that the same were liable to confiscation u/s 111 of theCustoms Act, 1962 and copy of Seizure list and Inventory of the seized goods werehanded over to Shri Aloke Ghosh, G Card holder of the CHA.

6.3. Consignment under AWB No. 21715543404 dated O5,O6.2O17:

6.3.1.Information obtained from the Airports Authority of India:

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J9!

*ul*sv

slNo.

Q ua ntity(in Pairs)

Adidas 6912000

F.No. S33 2312017 ADJN (A&A)

and the Consignee as well as Buyer had been shown as M/s Sri Ram Traders,lv'lakan No. D498, cali No.4, Rajeev Colony, Old Kundali, Delhi-110098.

It was also learnt from scrutiny of AWB that the concerned AWB was issued atBangkok, Thailand on freight prepaid basis and showed the description of thegoods as Electronic Parts in 9 packages.

6.3.2. Information obtained from the Customs Authoritiesl

No BoE had been flled for the subject consignment prior to the intervention of DRI,KZU on 05.06.2017.

6,3.3. Detailed Examination by DRI, KZU

6.3,3.1, 100%o examination of the consignment by DRI, KZU was recorded videPanchanama proceedings dated 21.07.2017 and brief details of inventory of thegoods found in the consignment is as below:

6.3.3.2. From the Panchanama proceedings as above, Import Documentsobtained from the Airports Authority of India it was seen that no BoE was filedeven after passage of one month's time after the consignment had arrivedon O5.O6.2O17. In the AWB, the description of the goods were 'Electronic Parts'andno va lue was declared.

6,3.3.3. During the 1009o examination by DRI, KZU on 21.07.2017, the goodsactually found were branded motherboards/ logic cards/ Accessories kit for brandedtelevision sets/ speakers, etc., whose value was ascertained to be Rs. 6,55,957/-.

6,3.3.4. After examination, as the goods in the conslgnment of 9 packages werefound to have been misdeclared in terms oF description vis-a-vis AWB and theconsignment being in pipe line of a series of mlsdeclared imports of which twoconsignments had already been detected and seized by DRI, KZU, the conslgnmentunder the AWB No. 27715543404 dated 05.06.2017 had been seized u/s 110 of theCustoms Act, 1962 by DRI, KZU on 21.07 .2017 on the reasons to believe that thesame were liable to confiscation u/s 111 of the Customs Act, 1962.

sl.No.

Description of Goods actuallyfou nd

Bra nd Quantity Value inRs.

1 Motherboard for Television Sa msu ng,Sony, ONV

752 334400

2 Spea ker for Television (L+R)connected with wire (in pair)

72927

Accessory Kit containing remote,HDMI Card, User Manual Series-6

Sa msu ng

4 Power Board for television Delta 30 108000Remote Control & user manual/Strip for panel/ Cord with fittinq

Sony, KemaKeu r

6 Logic card 20 24000Tota I 655957

SCN: DRI/ KzU /cF/INT-7s/ Pt. Sri Ram/464O dtd 4.72.77 Page 6 of 145

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F.No- 533- 23l2017 ADJN (A&A)the seized goods were kept with the Airports Authority of India, ACC,

8.1. The IEC details of the Importer had been issued in 2006 in the name of oneShri Sushil Kumar Singh residing at 28, Jhill Road, Kolkata-700 002. There are threebranches of the IEC holder, having addresses as:i. Sri Ram Traders, 1/26, Ghosh Bagan Lane. Kolkata-700 002ii. Sri Ram Traders, Makan No. D498, Gali No.4, Rajeev Colony, Old Kundali, Delhi-

1 10098iii. Sri Ram Traders, 9 Old China Bazar Street, 3'd Floor Room No. 43, Kolkata-700 001.

8.2. Two phone numbers associated with the IEC were 03365122090 and9883653618.

8.3, The details083150050802120Kolkata-700 001.

of the bank account were mentioned as Current A/c No.held with Tamilnad Mercantile Bank Ltd. at 5BD, N.S.Road,

8.5. From the Customs EDI system it was observed that the IEC was extensivelyused during the period January,2015 to June,2017 through various ports and airportsof India. The IEC holder had expressed complete ignorance about the imports and hestated on record that he had lent out his IEC to one Customs Broker.

9. Search and Seizure

9.1. When a team of officers visited declared premises of Sushil Kumar Singh on27.06.2017, it observed that the premises is actually an address of a single roomapartment in a dilapidated condition. Only the wife of Shri Sushil Kumar Singh alongwith their sons were present. A summons was issued to Shri Sushil Kumar Singh toappear before the DRI officer on 28.06.2017.

9.2. From the supplier details for such misdeclared imports of cargo, it was foundthat in the case of Sri Ram Traders, all the three consignments were supplled by oneM/s Zhenda Foreign Trade HK Limited. Investigations conducted as well asIntelligence indicated that the Directors of the said company were Shri Arnab Sinhaand Smt Mohua Sinha, both of who were also listed as directors of M/s NAF LogisticsPrivate Limited who worked as freight forwarders for these consignments. Theresidential and Office premises of Shri Arnab Sinha and Smt Mohua Sinha weresearched on 23.10.2017. Although nothing incriminating was recovered from theresidence, some documents, two mobile phones of Shri Arnab Sinha and a Disk Drivewhich were reasonably believed to be useful in the investigation were recovered fromthe Office of M/s. NAF Logistics Pvt. Ltd. and subsequently seized.

9.3. The residence of Shri Navneet Kumar, Deputy Commissioner was searched on10.06.2077 and some incriminating documents and articles were recovered 'which

SCN: DRI/ KzU/cF/INT-7s/ Pt. Sri Ram/4640 dtd 4.72.77 Page 7 of 145

8. Import Export Code (IEC) Details

8.4. Shri Aloke Ghosh (G-Card holder of the CHA) submitted the Know YourCustomer (KYC) documents on 07.09.2017 comprising IEC printout from DirectorateGeneral of Foreign Trade (DGFT) website, photocopies of Voter Card No.WB/2U740/072382 and PAN Card No. BALPS4932D of said Sushil Kumar Singh.

F.No. 533 23l2017 AD.IN (A&A)lnclude four pages print-outs marked as "Wish Sales 59 Ctn" and "Whish Sales 117Ctn", in which package nos. with mark, items and weight were mentioned andagainst some packages "TO OPEN FOR INNSPECTION" is mentioned. These fourpages printouts appear to indicate details of two import consignment of M/s. WishSales Corporation of Delhi and which contained references of certainpa ckets/pa ckages which were not to be opened during examination by Customs atACC Kolkata. Md. Nasir Uddin identified these documents and also stated in hisstatement dated 09.06.2017 that these inspection instruction of M/s. Wish SalesCorporation of Delhi was sent to his e-mail by Monika Vora (Noticee No.O8) andafter he took out the print copies, he handed it over to Navneet Kumar.

10. Voluntary Statements u/s 1O8 of the Customs Act, 1962

1O,1. Importer, Supplier and the Middlemen

10.1.1. Shri Sushil Kumar Singh, Proprietor of M/s Sri Ram Traders, in hisvoluntary statements on 28.06.2017, 25.O7.20t7 and 11.09.2017 stated, inter-alia,that-

10.1.1.2. He never had nor presently has any officeat 28, Jhill Road, Cossipur, Kolkata-700002. Allmentioned in his IEC were false.

He had only one address i.e.the other addresses as

10.1.1,4. Badshah imported mobile parts and accessories under his IEC.Badshah met him (Sushil) and asked for his IEC. Initially, when he (Sushil) refused,Badshah told him that he (Badshah) was having setting with DC, Navneet Kumar atAirport Customs and Badshah took him to DC Shri Navneet Kumar sometime in l4ay2077. He met the DC at his olfice at Kolkata Airport and the DC asked him to give hisIEC to Badshah and also assured him that there would be no problem. Then he gavehis IEC to Badshah. Badshah proposed him a sum of Rs. 15OOO/- for eachconsig nment.

10.1.1.5. The consignment under the Bill of Entry 9948788 dated 03.06.2017 wasimported using his IEC and these goods were actually imported by Badshah andin the case of consignments imported under BoE No. 9948804 dated 03.06.2017,the goods were actually brought by Navneet Kumar,DC. If there is any dutyliabllity on these consignments, the duty is to be paid by the actual importers.

10.1.1.7. He did not know what were the goods brought under Airway Bill No.21715543404 in the name of his firm Sri Ram Traders.

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10,1.1.1. He obtained the IEC - 0206076417 to lend the same to differentimporters and to earn money out of that lending.

10.1,1.3. Earlier on, he lent his IEC and KYC to one Bidhan who used to work inthe capacity of Customs Broker at Kolkata Airport and he (Sushil) used to get Rs.1OOO0 per consignment. Later in May 2077, he had given his IEC to oneShahansha Mallik alias Badshah who is having a shop in Fancy Market,Khidderpore, Kolkata. He also lent out his IEC to Arnab Sinha having office atN.S.Road in the name of Modern Freight and electronic goods like motherboard,TV, LED panels were brought by Arnab Sinha under his IEC.

10.1,1.6. He lent his IEC to Badshah and Navneet Kumar for easy money.

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Page 8 of 145

F.No. S33 2312017 ADJN (A&A)10.1,1.8, Being shown the Panchanama and inventory of the goods brought underthe Bill of Entry No. 9948788 and 9948804 and also under the airway bill no.277L55434O4, he stated that Badshah told him that he would be bringing mobileparts and other accessories under these consignments.

10,1.1.9. From 2006, he used to lend his IEC to different importers and under hisiEC, various importers imported various goods through Delhi, Chennai and KoikataPort and Airport. He did not know who the importers were and what the goods werebrought under his IEC. He gave his IEC to Bidhan of Indo Foreign Agency who usedto reside in Belur. The consignments imported under his IEC were handled by M/sK,R.Express in Delhi, M/s Dabke Clearing & Forwarding Pvt Ltd in Mumbaiand M/s Guru Shipping and Clearing Services in Chennai as told to him byBidhan. He did not know what were the goods actually imported in thoseconsignments and who paid the duty.

10.1.1.10. Sri Ram Traders has only one bank account at Tamil Nad MercantileBank Limited, Kolkata which has been closed in lanuary/ February 2017

10.1.1.11. His bank accounts are maintained by one Shri Rajendra Jain and oneShri Vedpra kash Agarwal.

10.1.1.13. Arrest u/s 1O4 of the Customs Act, t962: In view of activeabatement in huge evasion of Customs Duty, Shri Sushil Kumar Slngh was arrestedon 25.07.2017.

10.1.2. Shri Shahansha Mallik alias Badshah was summoned and in hisvoluntary statements recorded on 28.O6.2Ot7, 29.O6.2OL7 and 18.09.2017 stated,inter alia, that-

10.1.2.1, During his course of business in Fancy Market, Khidderpore in about2015, he used to bring Chinese mobile handsets, mobile accessories from localcouriers, which were, at times, intercepted by the CC(P) officers. In that connectionhe used to visit CC(P) office and there he met Navneet Kumar, DC.

10.1.2.3. In January 2017 , he met one Arnab Sinha of NAF logistics, who used towork as a forwarder and asked him for an IEC lender. He met Sushil Singh throughArnab Sinha and asked Sushil to lend his IEC on commission basis and the ratenegotiated was Rs, 1OOOO/- per consignment.

LO,L.2,4. Later, as the rate of Bappa was very high, he contacted Sajal Das ofIndo-Foreign Agency, who introduced him with Nasir Uddin who would be doing hisjob at a cheaper rate and he imported one consignment of Mobile back cover andscreen guards, where Nasir Uddin worked as CHA on behalf of Sadguru and NAF

logistics worked as a freight forwarder for the goods.

1O.1.2.5. Later during March 2017, when he was about to staft importing goods,he came to know that Navneet Kumar was the DC at Airport Cargo and then he '.

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10.1.1.12. He did not know how many imports were done under his IEC sinceJanuary 2077 and how the payments were made for the imports. He had given hisIEC to Badshah and Nasir Uddin and they could explain the same.

LO.L.2.2. In December 2016, he brought three consignments of mobile covers,Screen Guards etc. through one Bappa, CHA, working at Kolkata Airport but he didnot know which company's IEC was used for those consignments.

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1O,1.2.6. Navneet Kumar told them that there would be no problem if they wantto import goods through Air cargo. Then he enquired about the CHA, and afterlearning that Nasir was working as CHA, he directed to bring goods like mobilephones, watches, cigarettes by concealment and he also directed that an amount ofRs. 50000 per consignment would be paid to him.

10.1.2,8, He knew one Karan of Mumbai who deals in high end watches andmobiles and asked him whether he could load watches and mobiles in hisconsignment from Hong Kong and for that Karan would be required to pay him Rs100 per watch and Rs 200/- per mobile set. Karan agreed to load about 450 piecesof watches in one carton and 620 mobile phones in two caftons. He gave the addressof godown of NAF logistics at Hong Kong as was known to him from Arnab Sinha.

1O.1.2.9. One of his friend Nasir stays in Bungee Street, Shenzing (Shenzhen),China. He contacted the suppliers and paid them in advance on behalf of Badshah. Inturn Badshah payed the money in cash to Nasir's mother in Kolkata,

1O.1.2.1O, The imports were misdeclared so as to make some profit after makingpayments to the Customs Officers and the DC. If the goods were not misdeclaredand the full duty were to be paid on the goods, there would be no profit atall. That was why the consignments were arranged to be cleared withoutexamination as far as possible and was misdeclared not to reveal the contentslike watches and high-mobile phones.

10.1.2.11. He paid Rs l lakh in cash to DC Shri Navneet Kumar. NavneetKumar used to give him a phone number, some one used to contact him and collectthe money near Airport No. 1 gate.

LO.1.2.L2. Arrest u/s 1O4 of the Customs Act, 1962: In view of activeabatement in huge evasion of Customs Duty, Shri Shahansha Mallik alias Badsha wasarrested on 25.07.2017.

1O.1.3. Shri Arnab Sinha, Director of M/s Zhenda Foreign Trade HK Limited andM/s NAF Logistics Private Limited in his voluntary statements dated 23.10.2017 and24.70.2077, stated, inter-alia, that-

10.1.3,1. He alongwith his mother Mohua Sinha are Directors In Modern FreightConsolidator(P) Ltd and NAF Logistics Pvt Ltd.

10.1.3.2. M/s TH Mason Logistics in Hong Kong is a counterpart of M/s ModernFreight Consolidators as they both are involved in Freight forwarding business. He

took up a job in Hong Kong with TH Mason as Sales & Marketing Manager in the year2010.

F. No. S33- 2312017 AD.JN (A&A)

called him (Navneet) in his mobile no 98300150950 and met him ln his office alongwith Sushil Kumar Singh.

1O.L.2,7. In May 2017, he imported another two consignments where Nasir Uddinworked as CHA on behalf of Sadguru and NAF logistics worked as a freight forwarderfor the goods.

10.1.3.3. The controlling person of TH Mason was one Mr. Joseph Lee and at hisinsistance, Arnab Sinha al6ngwith his mother acquired the shares of a company inHong Kong named as M/s Zhenda Foreign Trade HK Limited as one of the DirectorandhismotherMohuaSinhaaSco-Director.Bothofthempurchasedthesharesof.

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F.No. S33- 2312017 ADIN (A&A)

the new company on fifty-fifty basis from Mr. loseph Lee. A total of HKD 8000 wasspent on the formation of the said company which Arnab Sinha paid from hisearnings at Hong Kong.

1O.1.3.4. M/s Zhenda Foreign Trade HK Limited was acquired with an idea to getbetter business exposure for they would be supplying the goods to India. In all thecases NAF Logistics can act as freight forwarders.

1O.1.3.5. lY/s Zhenda Foreign Trade rented a godown in Hong Kong. The shippersfrom China were asked to deposit the goods at the said godown prior to shipment. TH lvlason would be issuing the Bill of Lading with M/s NAF Logistics as the consigneein India, and then, in turn, NAF Logistics would be issuing the delivery order to theactual importer or his clearing Agent.

1O.1,3.6. Presently, in place of M/ s TH lv'lason, another company managed by Mr.Lee, M/s Shipair Express is working as freight forwarder in Hong Kong. NAF Logisticsused to remit money to TH Mason earlier and presently the money is remitted toShipair Express to pay off the business dues.

LO.L.3.7. Since inception, NAF Logistics handled 17 shipments in 2011,68shipments in 2012, 11 shipments in 2013, 1 shipment in 2074, 18 shipments in 2015,41 in 2016 and 40 in 2017 expofted by M/s Zhenda Foreign Trade HK Limited.

10.1,3.8. M/s Zhenda Foreign Trade HK Limited did not have any bank account inHong Kong

10.1.3.9. He knew Sushil Kumar Singh as both of them were in transport business.Sushil Kumar Singh once approached him and said that he has an IEC in his nameand he wanted to import. Arnab quoted their rate and condition that M/s ZhendaForeign Trade HK Limited would be the supplier and M/ s Shipair Express would bethe carrler and the goods would be consigned to NAF Logistics and Sri Ram Traderswould be having the delivery order from NAF Logistics. Sushil Kumar Singh agreed tothe proposal and the rate. Arnab asked Sushil Kumar Singh whether he would importpersonally or somebody else would be importing on his behalf. Sushil Kumar Singhstated that he would lend his IEC but did not disclose the person to whom he wouldbe lending the IEC.

10.1.3.10. Sometime in lanuary/February of 2017 one person called him on hismobile No. 9899203809 and introduced himself as Badshah of Khidderpore. Heasked for some fEC lender and in response to this he(Arnab) gave him the nameand contact number of Sushil Kumar Singh.

10.1.3.11. Zhenda Foreign Trade HK Limited is actually the supplier of the 47consignments imported through Kolkata Airport during the period 2Ot5-2017.

10.1.3.12. The invoices and the packing lists of the three current consignmentsbear the signature of Hertman Wong signing as authorized signatory of ZhendaForeign Trade HK Limited. The actual name is Hertman Kong. This person is knownto him as working in TH Mason. Neither he nor his mother as Director of ZhendaForeign Trade HK Limited authorised any such person.

10.1.3.13. Arnab Sinha agreed that though Zhenda Foreign Trade HK Limited is thesupplier, the firm cannot receive any remittance from the importers of total 196consignments as no bank account has been opened by either of the Directors in HongKong in the name of that company. He admitted that the only alternative route for ..

': ". :

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F.No.533- 2 3/2017 ADJN (A&A)

Zhenda Foreign Trade HK limited to realize the remittance was through the iilegaltransaction channel, and that was also violative of the Foreign Trade (Development &Regulation) Act, 1992.

10.1.3.14, 1"1/s Zhenda Foreign Trade is basically a name lending firm. Thepurchasers purchased the goods and dispatched the same to the storage godown ofM/s Zhenda Foreign Trade HK Limited in packed condition. Zhenda issued theinvoices and the packing lists etc. without knowing about the goods based on thedictated description of the goods and value by the importers,

10.1,3.15, He admitted to have knowingly abetted the misdeclaration andundervaluation of the imports handled by Zhenda Foreign Trade HK Limited and M/sNAF Logistics

10.1,3.16, Arrest u/s 1O4 of the Customs Act, 1962: In view of the actions ofShri Arnab Sinha towards abetting the import of misdeclared goods in the case of SriRam Traders and other companies, he was arrested on 25.O7.2017.

1O.2, Customs Brokers, Employees and Contractors

1O.2.1. Voluntary statement of said Shri Aloke Ghosh, G-Card holder of the CHA,was recorded on 08.06.2017 wherein he stated, inter-alia, that;

1O.2.1.1. He was working under M/ s Sadguru Forwarders Pvt. Ltd. for the pastone and half year. He used to do different jobs like noting, location tracking etc. atACC Kolkata. Previously, he used to work under another Customs Broker namely M/sS. Murugan and Company.

LO.2.L.2, M/s Sadguru Forwarders Pvt. Ltd mainly handled the consignments ofMobile Accessories, LED TV, spares, LED Panel, Garments accessories, Shoes,Chinese unbra nded watches;

10.2.1.3. He did not know the owner of M/s Sadguru Forwarders Pvt. Ltd. So farhe knew they lived at Mumbai. He was answerable to Shri Sukhendu Maity,authorized signatory of the Customs Broking firm;

LO.2.L,4, He was present at ACC Kolkata on 05.06.2017. However, after he hadgot the news that DRI wanted to examine their consignment he fled away as perinstruction of his associate Md. Nasir Uddin;

1O.2.1,6. Nasir Uddin procured some clearance jobs and asked him to clear in thename of M/s Sadguru Forwarders Pvt. Ltd for which Nasir Uddin used to give him Rs.

15OO/- to Rs. 2000/- per consignment. Everyday, he would get Rs. 7000/- to Rs.

8000/- per day for the previous three months over and above his salary of .Rs. ..'

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Bill of Entry for the instant consignment was filed by the Customs Broker M/ sSadguru Forwarders Pvt. Ltd and it was gathered that clearance of the importconsignments through ACC, Kolkata handled by the said Customs Broker was lookedafter by their G-Card license holder Shri Aloke Ghosh. However, preliminaryinvestigation also suggested that Shri Aloke Ghosh along with one Md. Nasir Uddinhandled such mis-declared consignments.

1O.2.1.5. Md. Nasir Uddin was a staff of Indo-Foreign Agents Pvt. Ltd. He knewNasir Uddin since 1998. Nasir Uddin used to help him in all his works like noting,location, examination, etc. ;

F.No. 533 2312017 ADIN (A&A)

He altogether received about Rs.10000/ got from M/ s Sadguru Forwarders Pvt. Ltd2,O0,O0A/- from Nasir Uddin.

1O.2.L.7, [4d, Nasir Uddin used to be present at the time of examination of theconsignment, the job of which were procured by him (Nasir); He (Aloke) was neverpresent at the tlme of examination, therefore he (Aloke) was not aware of the mis-declaration;

1O.2.1,8. Shri Pranabananda Bala, Examiner used to examine the goods clearedby M/s Sadguru Forwarders Pvt. Ltd.;

10.2.1.10, He identified the short signature of DC Navneet Kumar at the bottom ofthe first page of the Bill of Entry No. 9940859 dated 02.06.2017 mentioning thewords 'Pl Release'. The instant consignment was released as per manual outof charge order of DC Import Shed.

1O.2,1.11. He also identified the short signature of DC Navneet Kumar on the othertwo Bill of Entry under DRI's investigation where manual out of charge order wasgiven by him.

LO,2.2.L. From 2006, he used to work as freelancer at Air Cargo Complex, NSCBIAirport. Kolkata when he prepared Sales Tax Way Bill for different CHAs,

LO.2,2.3. He was once (one and half month back from then) called by ShriNavneet Kumar, DC, in his chamber at 2nd floor, Air Cargo Complex Building, NSCBIAirport, Kolkata. Navneet Kumar introduced him with one Shri Ansari (who is relatedto a different consignment cigarette seized by DRI Kolkata at ACC, Kolkata) as animporter and directed him (Nasir) to assist him(Ansari). When he informed NavneetKumar that he did not have any Customs license to clear import cargo, NavneetKumar told him to arrange a reliable Customs Broker to clear importconsignments of Mr. Ansari as he (Navneet Kumar) himself would befacilitating those imports. Navneet Kumar also assured that payment would notbe a problem as he (Navneet Kumar) would be supervising the entire process. Hewas further assured that he would get Rs. 4OOO/- to Rs. SOOO/ perconsignment. As he was in need for money, he agreed to the proposal of NavneetKumar. After that he approached Aloke Ghosh, G-card holder of M/s SadguruForwardes Pvt. Ltd and he told Aloke Ghosh that there would be no problem as DC

Navneet Kumar has given him this work. He offered Aloke Ghosh to pay Rs.2OOOI- per consignment. After a few days Navneet Kumar took his e-mailaddress (nasi16OO36@gmail.com) and informed him that the importer wouldbe sending the documents like invoice, packing list, Airway bill etc. in his e-mail. Thus, he was engaged in these impoft jobs.

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1O.2.1.9. He heard from Naslr Uddin that all those parties work which was doneby him (Nasir) was actually done as per direction of DC Shri Navneet Kumar.

10.2.2, The above statement of Shri Aloke Ghosh and investigation suggestedthat Md. Nasir Uddin played a major role in the said smuggling. Accordingly,voluntary statements of Md. Nasir Uddin were recorded on 09.06.2017 and10.06.2017 wherein he, stated, inter-alia, that:

LO.2.2.2. He used to clear cargo for different importers in the name of theCustoms Broker, namely lvl/s Sadguru Forwarders Pvt. Ltd.

Page 13 of 145

1: \o.533 2ll2C17 ADIN (A&A)LO,2.2.4, So far he remen-ber-ed tr"e frrst im3ort cons gnment he nandled wase:her of M/s Wish Sales Corporation or Raghav International. But these two werenot the companies of Ansari. Navneet Kumar lnformed him that work of lvlr. Ansariitould be done later. These companies like M/s Wish Sales Corporation orRaghav International were of one Ms. Monika of Delhi and Shri NavneetKumar told him that he (Navneet Kumar) would be giving all support like Mr.Ansari's import. Navneet Kumar also told him that these consignments would beexamined by EO Pranabananda Bala and either Biplab Das or Vikki Kumar asAppraiser. Navneet Kumar further informed him that payment in respect ofimports of Monika would be gaven to him by the transporter Mr. Santosh.

1O.2.2.5. Accordingly, he filed Bills of Entry. The Annexure was signed bySukhendu Maity of Sadguru Forwarders Pvt. Ltd. The Check Lists were signed by himor Aloke Ghosh.

LO,2.2.6. He used to receive mails from Ms. Monika informing whlch cartons areto be opened for examination.

LO,2.2.7. The consignments were examined by EO Pranabananda Bala andAppraiser Vikki Kumar;

10.2.2.8. After examination, Mr. Santosh gave him the money in cash and thegoods were handed over to him (Santosh);

LO,2.2,9. After receiving the mails of Monika about the cartons to be opened, asper instruction of DC Navneet Kumar he handed over the print outs of the mails toNavneet Kumar who would inform him that Mr. Pranabananda Bala and Mr. VikkiKumar would be given instruction not to open any carton other than those arementioned in the list. Accordingly, no other cartons were opened by the EO andAppraiser during examination.

LO.2.2.LO. Soon after clearance of the consignments of Monika as stated above,Navneet Kumar had informed him that Ansari would import one consignment in thename of Sharma Sales Corporation and he (Ansari) would send import documents bye-mail. Accordingly, he received documents through e-mall along with a list ofcartons to be opened for examination. This consignment was also cleared in similarfashion. Regarding the consignments cleared by him, Nasir Uddin gave the names ofthe company under control of Ansari as M/s Sharma Sales Corporation and M/sBiswas Enterprise.

10.2.2.11. He stated the names of the company under control of Monika as M/ sS.R. Solutions, M/s Wish Sales Corporation, M/s Raghav International, M/s S. S.Overseas, M/s Yash International, M/s Pasiflc Enterprise, M/s Surya International,M/s Tapas Halder and M/s Sri Ram Traders. He stated that there may be some morecompanies of Smt. Monika which he did not remember.

LO.2.2,12. He had cleared almost 100 consignments in the past in this fashion; Inall the cases, the consignments were mis-declared. The consignments imported fromDubai contained Clgarettes whereas they were declared to contain Men's Chappal,Baby Pampers, Jugs, Flask. The consignments imported from Hong Kong actuallycontained branded sports shoes, mobile phones, moblle phone parts, watchesagainst declared as mobile accessories, unbranded shoes, mobile LCD. Theconsignments were examined by Pranabananda Bala, EO and either by Vikki Kumaror B. Das, Appraiser as instructed by Navneet Kumar;

,t.r)'4'&*33

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LO,2.2.L4, Navneet Kumar used to enquire about the status of work regularly fromhim. He regularly inform Navneet Kumar about the position of import consignmentsby WhatsApp messages. Navneet Kumar used to give order for manual out of chargeof the consignments for speedy clearance and also to avoid complications.

10,2.2.15. He used to send WhatsApp messages from his Samsung Galaxy J7Mobile phone set having connection No. 9830810095 to Navneet Kumar's mobilephone No. 9830050950.

tO.2.2,16. On 05.06.2017, when officers of DRI were searching for him in the ACC,NSCBI Airport, he contacted Navneet Kumar who directed him to flee from the spotand also to delete the WhatsApp Messages between him and Navneet Kumar and hedid accordingly;

LO.2,2.L7. Navneet Kumar, Pranabananda Bala and Vikki Kumar directed him notto appear before DRI, that is why he appeared late after 4 days of the incident.

to.2,z.La, In course of givlng statement, on being requested he accessed his e-mail account and took out printouts of the available mails regarding theconsignments handled by him and submitted the same after signing on each of thepages. The printouts contained the documents and secret information (examinationinstruction sheets) related to the consignments cleared in the past as well as someuncleared consignments which had been imported in the name of Tapash Halder(consignment of 132 Packages), Biswas Enterprise (consignment of 40 packages)Surya International (2 consignments of 200 pkgs and 169 pkgs) and S. R. Solutlons(consignment of 62 packages).

LO.2.2.L9. Shri Navneet Kumar informed him that all the 5 uncleared consignmentsas above were containing goods which would not match with the description anddeclaration in the Air Way Bill and the Invoice. Further the consignment of 62 Pkgsunder the Air Way Bill No.17636016164 imported in the name of S. R. Solutions wasto be processed and cleared on 05.06.2017 as per instructions of Navneet Kumar, DC,

but that could not be done because of DRI's Intervention.

LO.2.2.21, He earned about Rs. 5 Lakh for 100 consignments. Out of which hegave Rs. 2 Lakh to Aloke Ghosh who in turn gave Rs. 50000/- to Sukhendu Maity.

LO.2.2.22. On being confronted with the four pages print-outs marked as "WhishSales 59 Ctn"and "Whish Sales 117 Ctn", in which package nos. with mark, itemsand weight were mentioned and against some packages 'TO OPEN FOR

INNSPECTION"is mentioned, recovered from the house of Shri Navneet Kumar duringthe search on 10.06.2017 and where Navneet Kumar put his dated signature onlO.O6.2Ot7 and in respect of which Navneet Kumar commented that those wereprovided to him by an informer, Nasir Uddin stated that these were the copies ofdocuments received by him (Nasir) in his e-mail from Monika (e-mail ,, Ou'n9,, ,. '.'

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1O.2.2,13, In most of the cases he used to receive e-mails rncorporating the cartonnos. to be placed for examination and he would give the same to Navneet Kumarwho in turn gave it to the officers. In a few cases where he did not receive such e-mails, Navneet Kumar would give the carton nos. directly to the officers and him byway of writing in a piece of paper;

1O,2.2.2O. Monika used to send e-mails to him mainly frommak.china@outlook.com or mak.china@live.com or sometimes from email ID createdin the name of the firms.

F.No. S33- 2312017 ADIN (A&A)

ma k.china@outlook. com ) on 27th March 2017. He had given printouts of thosesheets to Sri Navneet Kumar to instruct the Shed Officers accordingly. He hadalready submitted the printouts of the same documents from his mail account.

10.2.3. Voluntary statement of Md. Nasir Uddin, was further recorded on23.O6.2OL7 when he reiterated his previous statement and fufther stated inter aliathat: -

1O.2.3.1. He and Aloke Ghosh used to take delivery orders from Airlines in respectof consignments handled by M/s Sadguru Forwarders Pvt Ltd.

1O.2.3,2. As per instruction of Shri Navneet Kumar, DC of Customs, he handledthe impot consignments of the firms represented by Smt Monika.

10.2.3,4, Shri Navneet Kumar, the then DC of Customs, ACC Kolkata also toldthat along the AWBS, Invoices, Packing lists, the rough examination sheets would beforwarded to his mail Id 'nasir60036@gmail.com' and he had to file challan on thebasis of that. Shri Navneet Kumar further told him that before filing the Bills of Entryeach set of documents need to be shown to him (Navneet Kumar). Accordingly, heshowed each and every set of documents to Shri Navneet Kumar which he receivedin his mail Id. Shri Navneet Kumar after verifying those documents asked him to fileBills of Entry which he had already stated before.

10.2.3.5. He used to contact Shri Navneet Kumar in his mobile number9830050950 and sometime 9163941885.

10.2.4. Voluntary statement of Shri Aloke Ghosh, was further recorded underSection 108 of Customs Act, 1962, on 06.O7.2017 when he relterated his previousstatement and further stated inter alia that:-

LO.2.4.1, Their clearance work at Air Cargo Complex was handled by Md. NasirUddin and he (Md. Nasir Uddin) used to negotlate with the importers.

LO,2.4.2. The stamp of M/s Sadguru Forwarders Pvt Ltd was lent out to him formonetary consideration of which he (Aloke Ghosh) and Shrl Sukhendu Maity werepa rty to it.

LO.2.4.3. Md. Nasir Uddin can only say whether KYC and Authorlzation of all theimporters were obtained. He enquired verbally with Md. Nasir Uddin regarding thesame and he (Md. Nasir Uddin) told that it was obtained.

LO.2.4.4. All the Bills of Entry were filed at CMC, ACC Kolkata. During filing of Billsof Entry or taking delivery of goods neither the CMC people nor Customs everchecked KYC or Authorization letter.

LO.2,4.5. He (Aloke Ghosh) used to sign the check list and look after the deliveryof goods. The import consignments were dellvered to different parties as instructedby Md Nasir Uddin.

LO.2.4,6, As instructed by Md. Nasir Uddin the imports of Delhi based importers,the goods were delivered mostly to two person namely Shri Santosh and Shri Jaydev.

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10.2.3.3. He never met the Proprietor, Director or Paftner of any firm representedby Smt Monika.

1O,2.5. Voluntary statement of f4d. Nasir06.07.2017 when he stated inter alia that:-

F.No. S33- 2312017 AD]N (A&A)

Uddin, was further recordedon

10.2,5.1, During filing of Bills of Entry or at any other point till delivery of 9oods,the CMC people or the Customs at ACC Kolkata never checked or took copies of KYCor Authorization for imports.

10.2,6. Voluntary statement of Shri Aloke Ghosh, was further recorded on79.O7.2077 when he stated. lnter-alia, that all related works right from assessment,noting, location, appraisement etc., were being done by Md. Nasir Uddin. He (NaslrUddin) handed over the gate pass for completion of all formalities by Customs and he(Aloke Ghosh) cleared the goods from Airport area only.

LO.2,7. Voluntary statement of Md. Nasir Uddin, was further recorded on19.O7.20-1,7 when he inter alia stated that:-

LO.2.7,L. He admltted that he did not have any authority to work for M/s SadguruForwarder Pvt Ltd though he was working with the said firm from January, 2017.

LO.2.7.2, All works related to clearance job was done by him by using the stampand seal of Customs Broker, M/s Sadguru Forwarder Pvt Ltd, which he knew wasillegal. Shri Aloke Ghosh of M/s Sadguru Forwarder Pvt Ltd used to sign on papersonly.

10.2,7.3, The fact of using the stamp and seal of M/s Sadguru Forwarder Pvt Ltdby Md Nasir Uddin for clearance of import consignments of different parties wasknown to Shri Sukhendu Maity, authorised signatory of M/s Sadguru Forwarder PvtLtd.

tO.2,7.4, He was compelled in importing the mis-declared items by differentimporters as Navneet Kumar, Deputy Commissioner of Customs directed him (Md.Nasir Uddin) to do so.

10.2.8.1, They had procured the clearance jobs of different importers from Md.Nasir Uddin but did not verify antecedents, identity of their clients and functioning oftheir clients at their declared address by using authentic sources in terms ofRegulation 11(n) of Customs Brokers Licensing Regulation 2013.

10.2.8.2. They filed Bills of Entry on the basis of KYC of the importers anddocuments provided by Md. Nasir Uddin.

10.2.8.3. They did rely not only on Md. Nasir Uddin but also on Shri NavneetKumar, Deputy Commissioner of Customs who assured them and told to clear theconsignments of Md. Nasir Uddin's client and for it they would not face any problem'

1(J.2,7.5. Though he was compelled to do the clearance job of mis-declared itemsas per direction of Shri Navneet Kumar, he (Md Nasir Uddin) received money for it.

10.2.8. Voluntary statement of Shri Aloke Ghosh, was further recorded on25.07.2017 when he reiterated his previous statements dated 08.06.2OL7,06.07.2017 and 19.07.2017 and further stated inter alia that:-

LO.2,8.4. They raised charge on an average of Rs. 1500/- for clearance perconsignment at ACC Kolkata. Out of which Rs 500/- was given to Shri SukhenduMaity and the rest amount of Rs. 1000/- was kept by him (Aloke Ghosh).

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10.2.8.5. Ivld. Nasir Uddin gave him Rs 1500/- for small consignment like 1 to 10packages and for other consignment he gave him (Aioke Ghosh) Rs 2000/-

10.2.a.6. In the last three months up untill 25.A7.2017, they had handled morethan 300 consignments imported by the clients of Md. Nasir Uddin at ACC Kolkata forwhich Nasir paid him(Aloke Ghosh) Rs 2,00,000/-

LO,2,A.7. He was never present during examination of consignment by Customswhich were procured by Md. Nasir Uddin. He was specifically instructed by Md. NasirUddin for the same who told him that his presence was not required.

10.2.8.9. He came to know from Md. Nasir Uddin that many jobs were procuredthrough one Sajal Das who was associated with M/s Indo Foreign Agency. He wasalso not aware whether Shri Sajal Das was present during examination or not.

10.2.8,10. He only assisted Md. Nasir Uddin during delivery of the consignments.

LO.2.9. Voluntary statement of Md. Nasir Uddin,7.9.2OL7 when he categorically stated, inter-alia, that;

was further recorded on

10.2.9.3. He was introduced with Perwaiz Ansari, Pappu and Alam Perwaiz by ShriNavneet Kumar, DC. In respect of Monlka, Navneet Kumar gave him Monika's mobilenumber and instructed him to clear all her consignments. He further reiterated thatfor all the imports of firms under control of Perwaiz Ansari , Pappu. Alam Perwaiz andMonika, DC Navneet Kumar used to instruct Appraiser Vikki Kumar and EO

Pranabananda Bala to check only those packages which was contained no mis-declared goods and the examination were done accordingly. Many suchconsignments were given manual out of charge by Shri Vikki Kumar at per thedirection of Shri Navneet Kumar by giving writing instruction on the body of the EDIBills of Entry.

10.2.9.4, He further added that he was handpicked by Shri Navneet Kumar toclear such mis-declared consignments. Navneet Kumar also monitored those importsand used to take day to day report from him. The payments were received from

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10.2.8.8. He did not know why Shri Pranabananda Bala, EO stated that he used tobe present during examination of goods.

1O.2.9.L. Mr. Parwaiz Ansari was associated with two importing firm namely (1)Sharma Sales Corporation and (2) Biswas Enterprise and Ms. Monika was assoclatedwith (1) Yash International, (2) S. R. Solution, (3) Wish Sales Corporation (4)Raghav International (5) Raghav International, (6) S. S. Overseas, (7) ArcturusSystems Pvt. Ltd., (8) Pasific Enterprises, (9) Surya International, (10) Tapas Halder,(11) Syndicate Trading, (13) Siddhi Trading Company and (14) Lavish Enterprises;Mr. Mandeep was associated with Ambey Telecom; Mr. Gullu was associated withLotus Impex; Mr. Pappu was associated with Jash-Insha Exports Pvt. Ltd.; Mr. AlamPerwaiz was associated with Sony Trading Company; Mr. Kishan daga was associatedwith Kamal Impex and Narendra Inpex and Mr. Badshah was associated with Sri RamTraders.

1O.2.9.2. He also reiterated that certaln Departmental offlcers namely ShriNavneet Kumar, DC, Shri Pranabananda Bala, EO and Shri Vikki Kumar, Appraiserposted at ACC Kolkata were involved with the mis-declared imports made by theaforesaid firms as he has already stated in his previous statements.

F.No. S33- 2312017 ADIN (A&A)

either Santosh or Jay deb. So far his knowledge the goods were sent to Howrahstation by trucks for further transport by trains. He further stated that the Bills ofEntry No. 9959884 dated 05.06.2017 of Biswas Enterprises and 99488O4 dated03.06.2017 of Sri Ram Trader (the consignments of which examined later by DRIand found mis-declared good like cigarettes and shoes, respectively) were assessedby Group and then he brought these two Bills of Entry to DC's room for finalassessment at about 17.00 Hrs on 05.06.2017 as the declared value was more thanl lakh but he could not meet DC.

10.2.9.5, Query was raised by the DC on these Bills of Entry most probablyafter DRI's intervention on O5.O6,2O17. Regarding the Bill of Entry No. 994A7ABdated 03.06.2017 of Sri Ram Traders (in which DRI found branded watches andmobiles), the Bills of Entry was finally assessed by the DC on 03.06.2017 andexamined on 05.06.2017. He named another person named Arnab Sinha of NAFLogistics, Freight Forwarder, who was also involved in the imports of Sri Ram Traders.

10.2.9.6. He also stated that in respect of import of Lotus Impex (India) andAmbey Telecom, he received payments from M/ s Nir mala Bala Trading & Co, thefirm of Sajal Das who introduced him to Gullu and Mandeep for the two firms. Thesaid Sajal Das also introduced him to said Badsha @ Sahansah Mallick ofKhidderpore who had imported goods by using IEC of Sri Ram Traders.

1O.2.10. Voluntary statement of Sri Sukhendu Maity, authorised signatory of theCustoms Broker M/s Sadguru Forwarders Pvt. Ltd. was recorded on 27.06.L7 whereinhe inter alia stated that Sri Aloke Ghosh who is G card holder of SadguruForwarders Pvt. Ltd looked after all the import clearance at ACC Kolkata onbehalf of the Customs Broker. Aloke Ghosh procured jobs for clearance of theconsignments of different importers mainly from Nasir. Aloke Ghosh used to repofthim day to day basis. Aloke Ghosh used to take KYC and authorisation fromthe importers and keep with him (Aloke). He used to sign on the Annexurerequired for flling of BE. He(Sukhendu) did not know any importer who had importedthrough ACC Kolkata under Customs Broker license of Sadguru Forwarders Pvt. Ltd.Aloke Ghosh told him that he procured the jobs from Nasir and Saial whowere the men of DC Navneet Kumar.

1O.2.11. Further, three Summons were issued to said Sukhendu Maity but he didnot turn up. However, Death certificate of Sukendu Maity was received by the officefrom his family from where it could be seen that Sukendu Maity expired on07.tL.2017.

11. As per the statement of Md. Nasir Uddin, one Ms. Monika was sending him theimport documents and instruction for examination, in respect of the consignmentsimported in the name of different importers of Delhi and Kolkata, by e-mails.Intelligence developed further suggested that she (Monika) was an employee of oneMumbai based person, Mayur Mehta who had three-four Customs broking firmsincluding M/s Shreenathji Clearing & Forwarding Pvt. Ltd. and M/s MenegesClearing & Forwarding Pvt, Ltd. Intelligence also suggested that this MayurMehta played pivotal role in this massive smuggling made through ACC,Kolkata.

L2, Accordingly, under DRI Kolkata's letter dated 30.06.2017, DRI Mumbai ZonalUnit, Mumbai was requested to enquire with the said Mayur Mehta and Monika. On04.07.2017, the officers of DRI Mumbai visited the premises of both Mayur Mehtaand Monika, (whose name was found to be Ms. Swati Vora). However, neither MayurMehta nor Monika alias Swati Vora was available at their respective addresses.

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12,1. Voluntary statement of one Shri Rahul Bhimaji Phaphale, employee of 1.4/s

Menezes Clearing & Forwarding Pvt. Ltd., (in which lvlr. Mayur Mehta was a Director)was recorded on 04.O7.201,7 wherein, he sald, inter alia, that:

L2.L.t. He was employed with M/s Menezes Clearing Forwarding Pvt. Ltd for theprevious 4-5 months;

12.1,3. Mayur Mehta was the Director of M/s Menezes Clearing Forwarding Pvt.Ltd;

L2.L.4. There were three employees in M/s Menezes Clearing Forwarding Pvt.Ltd i.e. Ms. Monika Vora, Shri Umed Singh and he himself;

12.1.5. Both Monika and he looked the office work, whereas, Umed Singhlooked after the clearance at cargo;

12,L.6. Their firm was into clearance of import goods from Air Cargo ComplexSahar and most of the clearances pertain to moblle accessories.

12.L.7. The office mail was looked after by Monika and she used to sendand receive mail on the direction of Mayur Mehta;

13. Summons dated 25.O7.2017, 11.08.2017 and 21.09.2017 under Section 108of the Customs Act, 1962 was issued to sald Shri Mayur Mehta with the direction toappear before DRI Kolkata on 03.08.2017, 77.O8.2077 and 05.10.2017. However, onall the occasions, Mayur Mehta expressed his inability to appear before the DRIofficer stating health reasons.

13.1. Voluntary statement of Shri Mayur Mehta, Managing Director of M/ s Om TransFreight Cargo Private Limited, M/s Menezes Clearing and forwarding Private Limitedand Director, M/s Shreenathji Clearing & Forwarders Private Limlted could be finallyrecorded on 22.10.2017, when he was apprehended by DRI, Gandhidham in relatlonto a case booked by them in respect of one mis-declared import consignmentthrough Mundra Port. In the said voluntary statement, recorded under Section 108 ofthe Customs Act, 1962, he, stated, inter-alia, that:

13.1.1. Though he do not have any office at Kolkata, he had controlled importconsignments of several importers of Delhi and Noida through Air Cargo Complex,NSCBI Airport, Kolkata.

13.1.2. The import work of the above firms were handled by one Nasir Uddln byusing the stamp of one Customs Broker namely Sadguru Forwarders Pvt. Ltd,Kolkata ;

13.1.3, He employed two persons named Santosh and Joydeb for takingdelivery of the goods after out of charge and sending the goods to the importer /user of the IEC and also for making payment to Nasir Uddin; The impofters whoseimport consignments were handled by him through ACC, Kolkata by using the licenseof Sadguru Forwarders Pvt. Ltd, used to import goods through ACC, Delhi, whichwere handled by his own Customs Broker firms but as during March, 2017 clearance

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12.1.2. Office of M/s Menezes Clearing Forwarding Pvt. Ltd was at Room No. 16,Mohammad Hasan Building, Sutar Pakhadi, near Sahar Air Cargo Complex.Previously, it was the office of Shreenathji Clearing & Forwarding Pvt.Ltd.

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F.No.533 2312017 ADJN (A&A)

tiirough ACC, Delhi became problematic due to strict vigil of Customs Department, heplanned to shift to some other port and had chosen Kolkata as the then DeputyCommissioner, Air Cargo Complex, Kolkata (Navneet Kumar) was known to him;

13.1.4, The Deputy Commissioner (Navneet Kumar) instructed him to importmis-declared goods through Air Cargo Complex, Kolkata and had introduced him withone Sajal Das for helping in clearance of such misdeclared goods;

13.1.5. Sajal Das introduced him to said Nasir Uddin and told him that NasirUddin will assist him in clearance of such misdeclared goods by using the license ofSadguru Forwarders Pvt. Ltd.;

13.1,6, It was also planned that he would be sending the original packing listsand invoices to Nasir Uddin, indicating the packets which should be opened forexamination, then Nasir Uddin would give it to the said Deputy Commissioner ofCustoms (Navneet Kumar) who would in turn instruct his subordinates to open thosepackets only during examination; One of his trusted employee, named Ms. SwatiVora allas Monika, who was also a Director of M/s Om Trans Cargo Freight Pvt. Ltd,used to send the original documents indicating the packets which should be openedfor examination to Nasir Uddin by emall from his office and Nasir used to supplythose documents to the said Deputy Commissioner (Navneet Kumar) and as per his(DC's) instruction only those packets marked as to be opened for examination wereopened by the EO, Appraiser of ACC Kolkata;

t3.L.7. He had bribed the said Deputy Commissioner with heavyamounts, for clearance of the mis-declared consignments;

13.1.8. Monika used to send the mails mainly from the email id.mak.china@live.com and sometimes from different emails created in the names ofthe impofters;

13.1.9. After clearance of the goods, Nasir Uddin used to handover them toSantosh and Joydeb who also used to make him the payment which he used to sendto them by cash. Santosh and Joydeb also used to send the goods to differentpersons who had used the IEC of the said importers;

13.1.10. During June,2OL7 after DRI raid at ACC, Kolkata, he instructedNasir not to file any further bill of entry in respect of the cargo lying thereand stopped sending him further documents;

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13.1.11. He admitted that the import consignments contained misdectared goods and the goods were also undervalued to evade duty;

13.1.12, He also stated that the imports made through ACC, Kolkata by theabovementioned firms were of different persons of Mumbal to whom he had providedthe IECS for their import but he could not recall their names, they were basicallygeneral traders of Musafirkhana Market and City Centre Market of Mumbai;

13.1.13. The IEC and their KYC documents were provided by one Vaibhav ofRajlnder Nagar, Karol Bagh, Delhi whose mobile number he had deleted after KolkataACC case;

13.1.14. He had handled another mis-declared consignments of one M/s' KashiImpex, imported through Kolkata Sea Port, which was also seized by DRI Kolkata. d!

F.No. S33- 2312017 ADJN (A&A)

He gave his mobile numbers as 9821710875 & 9619684111.13.1.15

13.1,16. Shri Mayur l4ehta was arrested by DRI, Gandhidham in relation to thecase of misdeclared import made through Mundra Port. Thereafter, the news of deathof Mayur Mehta in Ahmedabad Civil Hospital was received, whlle he was in JudicialCustody.

L4. Summons dated 25.O7.2017 and 26.70.2017 under Section 108 of theCustoms Act, 1962 were issued to Ms. Monika Vora @ Swati Vora directing her toappear at the office of DRI, Kolkata on 03.08.2017 and O6.17.2017 respectively.

14.1. Ms. Monika Vora, however, never attended DRI office in response to thesummons issued to her. In response to the summons dated 26.10.2017, fvls. Vora,vide her letter received on 07.11.2017, inter alia submitted that she used to send e-mail and whatsapp messages to Md. Nasir Uddin, regarding clearance of importconsignments, as per the instructions of Mayur lYehta. She also requested toconsider the letter sent by her as her statement in response to summons issued toher under Section 108 of the Customs Act, 1962.

14,2. As it appeared that Ms. Swati Vora @ Monika was deliberately keeping himselfaway from the course of investigation, complaint under Section 174 of the IndianPenal Code was lodged against her in the jurisdictional Court for non-appearanceagainst the Summons issued under Section 108 of the Customs Act, 1962.

15. The name of Shri Sajal Das surfaced during the course of investigation fromthe statements of different related persons as detailed above. As such, Shri Sajal Das,was summoned under Section 108 of the Customs Act, 1962 for explaining his role inthe instant fraud and his voluntary statement was recorded on 23.10.2017 and24.1O.2077 , where he identified himself to be the proprietor of M/s K.C. Das & Co, a

Customs Broker and Partner of Indo-Friends Agency, another Customs Broker,operating in Kolkata Airport and Kolkata Port. Further he inter alia stated that:

15.1. He knew Nasir Uddin as he (Nasir Uddin) used to work in his firms earlier

15.2. Nasir Uddin left their company in December 2016 and thereafter he introducedNasir Uddin with some importers /persons intending to bring goods through theairport at Kolkata.

15.3. The persons he introduced Nasir with Included one Mayur Mehta.

15.4. He himself was introduced to Mayur lt4ehta by the Deputy Commissioner ShriNavneet Kumar who asked him to clear some import consignments of Shri Mehta;

15.5. He had a meeting with Mayur Mehta in March 2017 in Hotel 02, VIP Road,Kolkata and Shri Das came to know that the consignments of Shri Mehta wouldcontain misdeclared goods and therefore he did not handle the same but he gave thework of clearance of such consignments to Md. Nasir Uddin.

15.6. However, from the study of the e-mail account of Sajal Das, it was seen thatthe import documents of two other offending firms namely M/ s. Lotus Impex andM/s. Ambey Telecom were initially received at the e-mail of one of his firm. M/s. IndoForeign Agency. In this regard, may be observed that the import consignments ofthe M/s. Lotus Impex and M/s. Ambey Telecom were also intercepted by DRI,Kolkata which on examination were found to be grossly misdeclared and for whlchseparate Show Cause Notices have been issued.

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16. On enquiry with Mayur lvlehta, it was gathered that his Customs Broking firm,M/s Dabke Clearing & Forwarding Pvt. Ltd has an office in Kolkata near Airport 2112

No. Gate near 'Sabji' Market and his employees Santosh Mishra and loydev Das sitthere.

16,1. Further, subscriber details of the mobile number of Santosh obtained from theservice provider mention his address at Usashi Apartment, Ground Floor, 381/1Motilal Colony, 2 no. Airport Gate, Kolkata - 700081. Accordingly, officers of DRIvisited the said address on 01.11.2017. However, the office of said Dabke Clearing &Forwarding Pvt. Ltd was found locked. On enquiry with the neighbours, it wasgathered that the office was closed for the previous three months and nobody couldprovide the present whereabouts of Santosh Mishra and Joydeb Das.

16.2. Summons dated 22.1t.2ot7 under Section 108 of the Customs Act, 1962 weresent to Shri Santosh Mishra and Shri Joydev Das for their appearance on 27.11.2077but they did not turn up.

L7. Cancellation of License:

17.1. The Customs Broker License No. S-116 (PAN No. AAGCS7156L) of M/sSadguru Forwarders Pvt. Ltd was ordered to be suspended by the Commissloner ofCustoms (Airport & Administration) Custom House, Kolkata under CB Order No.07 /2017 dated . 07.O8.2017, with immediate effect until furthers under Rule 19(1) ofCustoms Broker Licensing Regulation , 2013, for their complete violation of theregulations laid down in the regulations, ibid.

18. INVOLVEMENT OF DEPARTMENTAL OFFICERS AND THEIR STATEMENTS:

18.1. The names of the following officers surfaced during the course of investigation,who were found to be involved in clearance of all such misdeclared consignments asdiscussed in Para 1 and also in the instant case of M/s Sri Ram Traders.

Shri Navneet Kumar, Deputy Commisioner, ACC, Kolkata.Shri Vikki Kumar, Appraiser, ACC, Kolkata.Shri Pranabananda Bala, Examining Officer, Kolkata,

19. Voluntary Statement of Shri Vikki Kumar, Appraiser of Customs posted at ACC,Kolkata, who was reported to have examined most of the mis-declared importconsignments of different importers and given out of charge which were handled byMd. Nasir Uddin under license of M/s Sadguru Forwarders Pvt. Ltd., was recorded on06.06.2017 under Section 108 of the Customs Act, 1962, wherein Shri Vikkl statedinter alia that: -

19.1. From 18.06.2016 to 30.09.2016, he worked as Examiner at ACC Kolkata, afterwhich he was working as Appraiser there;

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As such enquiry was initiated to ascertain their roles in such massive fraud ofmisdeclared im ports.18.2. By DRI Kolkata letter dated 06.06.2017, Commissioner of Customs (Airport &Administration), Custom House, Kolkata was intimated the detention and seizure ofconsignments by DRI Kolkata. The list of consignments required to be examinedwere also forwarded. In the above letter, it was also intimated that preliminaryinvestigation indicated involvement of some departmental officers.

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F.No. s33 2312017 ADJN {A&A)19.2. He was looking after assessment related work in Bill of Entry in import Shed;

19.3. As per prevalent practice fo lowed at ACC Koikata, in the case of RtvlS (RiskManagement System) Blli of Entry, CHA used to submit Bill of Entry to the ExaminingOfficer who would check the lvlAwB (Master Airway Bill) and HAWB (House Airway Bill)of the concerned Bill of Entry. If MAWB and HAWB Nos. were found in order, the Billof Entry is presented before the Appraiser who checks the classification andcorrectness of notification benefit. If all the above parameters are found in order, Outof Charge is given in the system. In respect of Group assessed Bill of Entry, the ordergiven by the group is followed and after finding the goods as per description, Out ofCharge is given in the system only after submission of reports by the examiningofficer in the system;

19.4. In some instances where m is-decla rations were found, the Bill of Entry wasreturned back to Group with remarks;

19.5. Regarding manual out of charge, for any Bill of Entry, he only looked after theorder of the Deputy Commissioner (Import Shed). But he had no idea whether theCommissioner had given any order for manual out of charge for the said Bills of Entrywhich is mandatory requirement.

19.6. A register for manual out of charge was kept in the Import Shed and there areso many Bills of Entry mentioned in the register. On the previous day, manual out ofcharge was given for 10 Bills of Entry and within 3-4 days, all these Bills of Entrywould be updated in the EDI system.

L9.7, In the last 2 days, manual out of charge was given by him in respect of 4 Billsof Entry handled by the Customs Broker M/ s Sadguru Forwarders Pvt. Ltd. with thepermission of DC Import Shed. Apart from these 4 Bills of Entry, no other Bills ofEntry of pertaining to M/ s Sadguru Forwarders Pvt. Ltd was cleared by him in thelast 2 days.

19.8. He did not know the main person of Sadguru Forwarders Pvt. Ltd. One Nasirused to represent the Customs Broking firm.

20, Voluntary statement of Shri Pranabananda Bala, Examining Officer of Customsposted at ACC, Kolkata, who was reported to have examined most of the mis-declared import consignments of different importers which were handled by Md.Nasir Uddin under license of M/s Sadguru Forwarders Pvt. Ltd., was recorded on06.06.2077 and 07.06.2017 under Section 108 of the Customs Act, 1962, whereinShri Bala stated Inter alia that;

2O.1. From March 2016 to Feb 2017 he had been attached to ACC Appraising Unit,ACC Kolkata and since Feb 2077 he had been working in ACC Import Shed as EO;

2O.2. As per allocation, his duty was to examine goods those were presented to himand to report to Shed Appraiser for OOC (Out of Charge);

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2O.3. As the prevalent procedure, in the case of RMS (Risk Management System) Billof Entry, CHA (Custom House Agent) used to submit Bllls of Entry to him. He wouldcheck the MAWB (Master Alrway Bill) and HAWB (House Airway Bill) number of thesaid Bill of Entry with the goods and also would check the required documents i.e.Invoice, Packing List, Airway Bill, DISA Certificate and other Certificates; thatregarding the Group assessed Bill of Entry, he would examine the consignment as

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F.No.533- 2312017 ADJN {A&A)per the order of Group along with Shed Appraiser and he would give examinationreport to Shed Appraiser for sending to Group;

2O.4, He followed the order of DC Import Shed regarding manual order of out ofcharge. He was not aware as to why DC Import Shed gave such manual out ofcharge order. I did not know whether any permission for manual out of charge wasgiven by the Commissioner of Customs or not.

20.6. In respect of all the consignments handled by the Customs Broker, M/sSadguru Forwarders Pvt. Ltd and cleared in recent past they were all ordered formanual out of charge by DC Import Shed, irrespective of whether the EDIsystem was working or was out of order;

21, Shri Navneet Kumar, Deputy Commissioner was examined under Section 108of the Customs Act, 1962 on 08.06.2017 and his voluntary statement was recorded.He denied giving any order for manual out of charge for any consignment, excepttwo consignments of Haldia Petrochemicals where approval of Commissioner wastaken. He however admitted that manual out of charge for EDI Bills of Entrywas common. He stated that Appraiser Vikki Kumar and E.O Pranabananda Balahad lied in saying that he had ordered for manual out of charge. He also denied theallegation that he had specifically instructed them about the specific packages to beexamined by them. Shri Navneet Kumar also disowned the orders for manual releaseand the signatures appearing on the hard copy of the Bill of Entry No. 99487BB dated03.06.2017.

22, Voluntary statement of Shri Vishal Kumar, Appraiser, SIB, ACC, Kolkata wasrecorded under Section 108 of the Customs Act, 1962 on 74.06.20t7 where VishalKumar inter alia stated that on receipt of one intelligence he had intercepted acourier consignment of M/s Courier N Cargo Alliance under Bill of Entry No.0330313A dated 01.06.2016 and on preliminary examination undeclared goods werefound in the said consignment. Therefore, 1007o examination of the consignmentwas proposed by him. However, the conslgnment was allowed to be cleared withoutexamination in presence of SIB and he was instructed by DC Shri Navneet Kumar notto take any further action in the concerned file and also to remove the page of thefile opening register, where entry of that particular file was made, which he did notcomply with.

23. Regarding the server link of EDI system at ACC, the office of HP-ResidentEngineer (HP-RE) who looked after the entire networking system of Ctrstoms at ACC,Kolkata, was enquired to ascertain as to whether there were any genuine reasons foradopting manual out of charge of Bills of Entry in the past 2 months. By letter datedL4.06.2017, the HP-RE, ACC, Kolkata intimated that the MPLS link down time forthe period from April 2OL7 to June 2017 is O (Zero).

24. As per letter dated 03.08.2017 of the office of the Commissioner of Customs(Air Cargo Complex), NSCBI Airport, Kolkata, there are no record of "ManualRelease" of the Bills of Entry No. 9948788 dated 03.06.2017 in their system and it isfurther intimated that the modus operandi of giving "Giving Manual Out Of Char:ge"''at Air Cargo Complex was in clear violation of Board's instructions issued vide F. No.4OUBI|2OLL dated 04.05.2017 read with corrigendum dated 12.05.2011 and further

SCN: DRI/ KZU/CF/INT-75/Pt. Sri Ram/464O dtd 4.72.77 Page 25 of 145

2O.5. There were other instances in the past that manual out of charge was given inrespect of the consignments of the same Customs Broker which were recorded in aregister by Import Shed Appraiser and used to enter examination report later.

F.No. 533- 2312017 AD]N {A&A)instruction No. 06/2017-Customs dated 2nd June,2077. From this, it appears thatthe Customs EDI system at ACC, Kolkata was all along actively working and therewas no reason to undertake the practice of manual out of charge of Bills of Entrywhich was in contravention of CBIC instructions.

25. Voluntary statement of Shri Vikki Kumar, Appraiser was recorded ont3,06,2017 under Section 108 of the Customs Act, 1962, and he was ccinfronted withthe statement dated 08.06.2017 of Shri Navneet Kumar, DC wherein he (NavneetKumar) denied of giving manual release order on any Bill of Entry. In his statementdated 13.06.2017 Shri Vikki Kumar stated, inter-alia, that;

25,1. He had never given any manual out of charge for any Bill of Entry without thepermission of DC in his posting as Appraiser in import charges;

25.2. He identified the "Manual Release" order of DC Navneet Kumar with his(Navneet Kumar) short signature which is at bottom right corner on the first page ofeach ofthe Bills of Entry No. 9940859 dated 02.06.2017,9441310 dated 02.06.2017and 9947893 dated 03.06.2017.

26. Voluntary statement of Shri Pranabananda Bala, EO was recorded on13.06.2017 under Section 108 of the Customs Act, 1962 and he was confronted withthe statement dated 08.06.2017 of Shri Navneet Kumar, DC wherein he (NavneetKumar) denied of giving manual release order on any Bill of Entry. In his statementdated 13.06.2017 Shri Pranabananda Bala stated, inter-alia, that;

26.1, Shri Navneet Kumar had lied stating that he(Navneet Kumar) had not givenmanual out of charge order on the hard copy of the Bills of Entry No. 9441310 dated03.06.20t7 and 9940859 dated 02.06.2017;

26.2. Shri Navneet Kumar had given written directlon on the hard copies of the Billsof Entry and on the basis of said written direction, he had submitted manualexamination report after examination of goods;

26.3. On seeing the hard copies of the Bill of Entry No. 9441310 dated 02.06.2017,9940859 dated 02.06.2017 and 9947893 dated 03.06.2017, he identifled the"Manual Release" order of DC Navneet Kumar with his (Navneet Kumar) shortsignature which is at bottom right corner on the first page of each Bills of Entry No.9940859 dated 02.06.20L7, 9441310 dated 02.06.2017 and 9947893 dated03.06.2017.

26.4, Shri Navneet Kumar used to call in his chamber and give him instruction onlyto open those packages which would be presented by the CHA;

26.5. He examined most of the consignments cleared by Sadguru Forwarders Pvt.Ltd as per direction and instruction of DC Import Shed;

26.6. On 05.06.2017, Shri Vikki Kumar was not with him when he receivedinstruction from DC in his (DC) chamber. But on previous occasion Vikkl Kumar usedto accompany him to DC's chamber and received same instruction.

27. Opinion of handwriting expert: The hard EDI Bills of Entry No. 9940859dated 02.06.2Ot7,94413tO dated 03.06.2017 and 9947893 dated 03.06.2017 onwhich Navneet Kumar had allegedly given written orders for manual out of chargewere examined preliminarily by a handwriting expert (Director of Kolkata Institute ofGraphology) on 13.06.17 comparing them with Navneet Kumar's handwriting in his

SCN: DRI/KZU/CF/INT-75/Pt. Sri Ram/4640 dtd 4.72.77 Page 26 of 145

\r F.No. S33- 2312017 AD.IN (A&A)- statement recorded by DRI on 08.06.2017. It has been opined by the expert that it

prima facie appears that there are similarities between the hand writing on the BEs(manual release order) and the handwriting of Navneet Kumar given in his statement.

27.L. For detailed examination the said three original Bills of Entry No. 9940859dated 02.06.2017, 94413tO dated 03.06.2017 and 9947893 dated 03.06.2017, oneSIB (ACC) file No S121( Misc)-19/20l7SIB(ACC), submitted by Appraiser Shri VishalKumar in course of giving his statement dated 14.06.2017, which contained thesignatures of Navneet Kumar,DC (both long and short) and hand written statementdated 08.06.2077 of Sri Navneet Kumar were sent to the handwriting expert ofrepute in Kolkata Institute of Graphology on 23.06.2017, and in his report dated28.06.2077, the Director, Kolkata institute oF Graphology opined that the signaturesof the DC Shri Navneet Kumar appearing on the said three Bills of Entry are exactlymatching with the signatures appearing on the said file and are written by samehand of same person.

28, To confront Navneet Kumar with the subsequent statements of ShriParamananda Bala, EO, Shri Vikki Kumar, Appraiser and Shri Vishal Kumar,Appraiser, SIB and also to carry out forensic examination of the seized mobilephones recovered from his possession further summons were issued to him forappearance on 13th and 14th June but he did not attend DRI office in response tothose summons.

29. Summons dated 27.06.2017 under Section 108 of the Customs Act, 1962 wasfurther issued to Shri Navneet Kumar for his appearance on 29.06.2017. But he didnot turn up. By letter dated 29.06.2017, Shri Navneet Kumar had expressed hisinability to appear for health grounds.

30. Further, Summons dated 29.06.2017 was issued to Shri Navneet Kumar forhis appearance on 30.06.2017 and the same was forwarded to the competentauthority at his changed place of posing i.e. the Additional Commissioner, ChiefCommissioner's office, Central Excise Kolkata for serving him. But Shri NavneetKumar did not turn up.

31.1. By letter dated 2a.O7.2017, the Chief Commissioner's office of Central Excise,Kolkata intimated that no application for leave in the prescribed proforma wasreceived by that office.

32. Further statements of Shri Vikki Kumar was recorded under Section 108 of theCustoms Act, 1962 on 23.06.2Ot7, 29.06.2017 and 13.07.2017 wherein he stated.inter alia stated that;

32.1. Two registers were maintained at ACC shed for keeping record of manual outof charge, though he did not know the reasons for maintaining two such registers but

:, ,

..r^ .i

SCN: DRI/ KZU /CF/INT- 15/ Pt. Sri Ram/464O dtd 4.72.77 Page27of145 'o',," ,::i

28.1. It has been reported vide letter dated 14.06.2077 of the Commissioner ofCustoms (Airport & Admin), Kolkata that Navneet Kumar absent from office withoutsanctioned leave. The DC however appeared DRI offices on 21.06.17,23,06.17 inresponse to Summons issued to him but he has denied all charges and held hissubordinate officers responsible.

31. By DRI Kolkata letter dated 20.07.2017, the Joint Commissioner, ChiefCommissioner's office, Central Excise Kolkata was requested to inform DRI whetherany application for medical leave was made by Shri Navneet Kumar and if so, it wasrequested to provide his address of leave.

\J F.No. S33- 2312017 ADJN (A&A)this practice continuing from the period before he joined ACC Kolkata. He did notknow about the legal sanctity of the registers. He instructed the CHAS to enter thedetails of Bills of Entry in the registers;

32,2. fhe two registers obtained from ACC Kolkata were identified by him and heput his dated signature;In some cases manual out of charge orders were given by DCas per the request of CHA. However, he did not know the reasons;

32.3. In respect of all the cases after giving manual out of charge, they used toenter Out of Charge in the EDI system on the same date or the next day; They didnot enter the fact of manual out of charge given in respect of any Bill of Entry in theEDI system.

32.4. In respect of each of the three Bills of Entry No. 9940859 dated 02.06.2017,9941310 dated 02.06.2017 and 9947A93 dated 03.06.2017, manual out of chargewas given on 05.06.2017 but it was not entered in any of the two OOC registers asthe Bills of Entry were with the CHA;

32.5. Most of the consignments cleared by M/s Sadguru Forwarders Pvt. Ltd weredirectly supervised and managed by the then DC Navneet Kumar. For clearance oftheir (Sadguru) consignments, Navneet Kumar intimidated Shed officers. So far herecalled certain consignments of the impofting firms, namely, Yash International,Surya International, Pasific Enterprises, Biswas Enterprises, S, R, Solutions, Jash-Insha Exports Pvt. Ltd, Sri Ram Traders, Lotus Impex and some other importershandled by M/s Sadguru Forwarders Pvt. Ltd were ordered for manual release by theDC. During examination those packets presented by the CHA were opened andexamined only.

33. Further, statements of Shri Pranabananda Bala was recorded under Section108 of the Customs Act, 1962 on 29.06.2017 and 13.07.2017 wherein he statedinter a lia stated that;

33.1. As per written direction of DC Navneet Kumar on the hard copy of the Bills ofEntry, he used to examine the goods in the presence of Appraiser and afterexamination he gave manual examination report;

33,2. He used to update regularly in the EDI system. However, while updating theEDI system he never mentioned that manual report was also glven; He alsoreiterated that as per order of DC Shri Navneet Kumar, only he had examined thecartons placed by the CHA

34.1. The findings of DRI investigations were communicated to the respectiveCompetent Authority, and Shri Navneet Kumar, Shri Vikki Kumar and ShriPranabananda Bala were suspended by their respectlve Disciplinary Authority.

SCN: DRI/ KzU /CF/INT-I, / Pt. Sri Ram/464O dtd 4.72.77

33.3. He joined ACC Kolkata in the last week of Feb, 2O17. After he joined, SajalDas who earlier associated with Indo Foreign Agency and Indo Friends came to himwith Nasir Uddin with one Bill of Entry where the official Customs Broker was M/sSadguru Forwarders Pvt. Ltd and Sajal Das told him that DC Navneet Kumarinstructed to check the consignments quickly and clear. Sajal Das told him that itwas his job. Since then Nasir Uddin came wlth Ranjan, brother of Sajal, and AlokeGhosh.

34. Suspension of officers:

Page 28 of 145

-t3s.f .\o. 5ll 2312017 ADJN (A&A)

Investigation into the seized documents and the freight forwarder:

The documents recovered and seized from the office premises of M/s NAF LogisticsPvt Ltd were scrutinized and the findings are as follows:

35.1. An envelope was sent by M/s Right Point Accountancy & Secretaries Ltd.Kowloon, Hong Kong. The envelope contained invoices raised by lY/s DHL on ZhendaForeign Trade (HK) Ltd and relates to non-realisation of payments for some oldtransactions between Zhenda Foreign Trade (HK) Ltd and Arnab Sinha of ModernFreight Consolidators. This document actually shows the link between NAF logisticsModern Freight and Zhenda Foreign Trade(HK) Ltd as the bills raised by DHL onZhenda foreign Trade HK Limited for shipping the consignments at Hong Kong andare being accounted in the Kolkata Office of NAF Logistics.

35.2. Among the other files recovered and seized from the office of NAF logisticsunder File No. 1/20 to 19/2O, it is seen that these are the HAWB wise involces issuedto the consignee for realization of the freight bills.

35,3, NAF logistics India is managed by one Shri Arnab Sinha. This Arnab Sinha isalso a Director in one Hong Kong company, M/s Zhenda Foreign Trade HK Limited,who is the supplier of all goods to Sri Ram Traders. From the bank account of SushilKumar Singh, it has been observed that no payment towards remittance was madein the year 2077 at all. This fact is further corroborated from the statement of IECholder Sushil Kumar Singh who went on record to say candidly that the mobilecovers are of the DC Navneet Kumar and the shoes are of Badshah, and he had noliability to pay off the remittance and duty in those cases.35.4. Further, as per the statement of Arnab Sinha, M/s Zhenda Foreign Trade HKLimited do not have any bank account at all. Arnab Sinha, in his statement, admittedthat Zhenda Foreign Trade HK Limited did not reallze any money for the said suppliesmade to Sri Ram Traders. However, NAF Logistics appeared to have received thepayments for their service mostly in cash deposited in their bank accounts.

35,5. The above facts go on to show that the imports were not only illegal but eventhe remittances are being attempted to be routed through channels other than thelega I channel.

36. Further investigation into the call details of various mobiles.

36.1. The Call Data Records for the mobiles numbers used by Navneet Kumar, DC,Pranabanada Bala, EO, Vikki Kumar, Appralser, Nasir Uddin, Mayur Mehta, Monika,Sajal Das, Aloke Ghosh, Santosh/ Monika and other persons found to be involved inthis massive smuggling were obtained for the previous six months from the date ofincident from the concerned service providers.

36,2. From the call data record, it is seen that Navneet Kumar, PranabanandaBala, Vikki Kumar, Nasir Uddin, Aloke Gosh, Sajal Das, Mayur Mehta, Monika,Santosh and other persons of the syndicate as, were in regular telephonic touchwith each other or close associates, as would be evident from the table below:

PeriodCalling

of Calling mobile number Ca llednumber

mobile Total numberof calls

April, 2017 toJune,2Ol7

9830050950(used by Navneet Kumar)

9830810095(used by Nasir Uddin)

35

April, 2017 toJune, 2Ol7

9830810095(used by Nasir Udd in )

9830050950(used by Navneet

t7

SCN: DRI/ KzU /cF/INT-7s/ Pt. Sri Ram/4640 dtd 4.72.77 Page 29 of 145

June,.9051815280l(used by Nasir Uddin )

Nav n e e_t_!i_um qI)905181 5280(used by Naslr Udd i

9163941885] (usea by]xumar)

F. No. S33-23/2017 ADJN (A&A)

2

Navneet 7

Kumar)

91639418857'' )une, 2017 (used by

7t"& Bti20L7

March,2017 toApril, 201.7

March,2017 toMay , 20L7

9830050950(used by Navneet Kumar)

9830022624(used by Sajal Das)983 0050950(usedKumar

by Navneet 11

Z)

9430022624(used by Sajal Das)

8th March,2017 9830050950(used by Navneet Kumar)

98277tO475(used by Mayur Mehta)

1

February,22d2017

9827770875(used by Mayur Mehta)

9830050950(used byKumar)

Navneet

Bth March,2017 9163 941885(used by Navneet Kumar) 1

9830050950(used by Navneet Kumar) 1

6th& 18th April,20t7

9871t25627(used by Mayur Mehta)

9830050950(used byKu ma r)

Navneet 2

I'4arch, 2017 to)une, 2017

9051024108(used by PranabanandaBala)

9430022624(used by Sajal Das)

B

9051024108(used by PranabanandaBala)

1March,30th

20t79830022624(used by Sajal Das)

6)une, 2OL79051024108(used by PranabanandaBala)

9051815280(used by Nasir Uddin)

March,2017 tolune,2Ol7

9051024108(used by PranabanandaBala)

9830810095(used by Nasir Uddin)

195

March,2017 to)une, 2Ol7

9830810095(used by N asir Uddin)

9051024108(used by PranabanandaBala)

94

9836457688(used by Aloke Ghosh)

11March,2017 to)une,2Ot7

9051024108(used by PranabanandaBa la)

BMarch, 2017 toJune,2077

9836457688(used by Aloke Ghosh)

9051024108(used by PranabanandaBala)

9830810095(used by Na sir Uddin)

4March,2017 to)une,2017

B5B29BB3 52(used by Vikki Kumar)

9830 81009 5(used by Nasir Udd in )

8582988352(used by Vikki Kumar)

5March,2017 toJune,2OL7

9A30022624(used by Sajal Das)

11rt2017

8582988352(used by Vikki Kumar)

SCN: DRI/ KzU /cF/INT-7s/ Pt. Sri Ram/4640 dtd 4.72.77

I

98277tO875(used by Mayur lYehta)

6th Ap ril, 2017 987 7125627(used by Mayu r lvlehta)

February,

Page 30 of 145

No. S33- 2312017 AD.IN (A&A)

27'' April, 20179830022624(used by Sajal Das)

to 90 51815 2 B 0(used by Nasir Udd in )

98364 57688(used by Aloke Ghosh )

9051815280(used by Nasir Uddin)

85829883 52(used by Vikki Kumar)

9051815280(used by Nasir Udd in )

9A30022624(used by Sajal Das)

9871125627(used by Mayur M ehta )

1

lvlay, 2Ol7July , 2077

May, 2017 to)une,2Ol7

9tn June, 2017

983645 7688(used by Aloke Ghosh )

61

39

1

March,2017 to)une, 2017

269830810095(used by Nasir Uddin )

9830810095(used by N asir Uddin)

42March, 2017 toJune, 2Ol7

39830810095(used by Nasir Uddin)

17th & 20th May,2077

9619684111(used by Mayur Mehta)

9836457688(used by Aloke Ghosh )

6469830810095(used by Nasir Uddin )

January, 2O1lto luly, 2017

4929836457688(used by Aloke Ghosh )

9830810095(used by N asir Uddin)

January. 2017to July, 2017

1559867839225(used by Monica)

March,2017 tolune, 2Ol7

9830810095(used by Nasir Uddin)

r64March,2017 toJune, 2077

9867839225(used by Monica)

2979830022624(used by Sajal Das)

9830810095(used by Nasir Uddin)

January, 2OL7to June, 2017

5589830810095(used by Nasir Uddin)

9830022624(used by Sajal Das)

January, 2Ot7to June, 2017

19830810095(used by Nasir Uddin)

AprilMay,

2017 to20t7

9830622624(used by Sajal Das)

67a444009t93(used by Santosh)

9830810095(used by Na sir Uddin)

March, 2017 tolune,2077

1049830810095(used by N asir Uddin)

8444009193(used by Santosh )

March,2017 toMay , 2Ol7

119836362166(used by Sa ntosh)

9a2t710475(used by Mayur Mehta)

Ma rch, 20 17 to)une, 2Ol7

59821710475(used by Mayur Mehta)

9836362166(used by Sa ntosh )

March,2017 toMay , 2077

49836362166(used by Santosh)

96196841 1 1

(used by Mayur Mehta )May, 2Ol7 to)une,2Ol7

29836362166(used by Santosh)

9867839225(used by Monica)

26thAptil,2ol7& 6thMay, 20 17

48130628083(used by Monica)

9836362166(used by Santosh)

March,2017 to)une,2017

29836362166(used by Santosh)

8130628083(used by Monica)

15th& 22nd April,20t7

t079A2r7L0475(used by Mayur M ehta )

9a67839225(used by Monica )

January, 2017to June, 2017

SCN: DRI/ KZU/CF/ INT'7'/ Pt. Sri Ram/4640 dtd 4.72.77 Page 31 of 145

L

-|9871125627(used by Mayur Mehta )

9830810095(used by Nasir Uddin)

january, 2077to June,2017

9821710875(used by Mayur M ehta )

9a67a39225(used by N4on ica )

9619684111(used by Mayur Mehta)

986-t839225(used by Monica)

F.No. 533- 23120

I zo:

47

7 ADJN (A&A)

January, 2077to May, 2017

9867A39225(used by Monica )

January, 2017 96196A4111to May, 2017 (used by Mayur Mehta)

March,2017 to 9A67A39225(used by Mon ica )

March, 2017 to | 9871125627lune,2077 (used by Mayur M ehta )

9867839225(used by Monica )

9877125627(used by Mayu r Mehta)

9867839225(used by l"lonica)

47

lune, 2Ol719

47

B

9

36.3, As it is evident from the above, all the key players of the smugglingsyndicate as revealed in the investigation were in touch with each other or wlth theirclose associates. Though Shri Navneet Kumar, the then Deputy Commissioner,ACC Kolkata denied having any knowledge about the smuggling activity at ACC,

Kolkata, it is seen from the above mobile call data summary, that he spoke toNasir Uddin, who had no locus standi and was in no way related to Customsin whatever manner, on many occasions. Further Shri Navneet Kumar is alsofound to be in contact with Shri Mayur Mehta, who appears to be a keyperson of the syndicate. It is further seen from the call details of Nasir Uddinthat he was also in regular touch wath Shri Pranabananda Bala, Examinerand shri vikki Kumar, Appraiser, both posted at the material time in Alr cargoComplex, NSCBI Airport and admittedly, as it transpires from the statements,examined all or most of the cargo handled by Shri Nasir Uddin under the licence ofM/s Sadguru Forwarders Pvt. Ltd. The call details as above, indicates theinvolvement of the officers in the conspiracy. Further, shri Sajal Das in his

statements straightway denied having any knowledge of the said smuggling.However, it is seen that he was in touch with Ms. Monika, Nasir Uddin and the said

officers. Therefore, it appears that he has also suppressed the truth and misled theinvestigation. Md. Nasir Uddin in his different statements never said anything aboutMayur Mehta. whereas, from the above call data records, it can be seen that he had

also spoken to Mayur Mehta many times. From the call records it can also be seen

that how Md. Nasir Uddin, Aloke Ghosh, Sajal Das, Mayur Mehta. Monika and

Santosh were related to each other.

:37. Enquiry anto IPR (Intellectual Property Rights) angle:

37.1. In course of examination, some wrist watches of highly costly brands RADo,ROLEX, OMEGA, PATEK PHILLIPE, CARTIER, EMPORIO ARMANI, TISSOT, LONGINES,

PIAGET, MICHAEL KORS, GUCCI, MONTBLANK etc. and the running shoes of NIKE

and eoioas brand in the instant consignments as well some other consignments of

21.t, 25th& 27thMarch,2017

9867439225(used by Monica )

9830022624(used by Sajal Das)

March,2017 toApril, 2017

508444009193(used by Santosh )

January, 2Ol7to May, 2017

9867839225(used by Monica )

329A67839225(used by Monica)

8444009193(used by Santosh)

March,2017 toMay,2Ol7

SCN: DRI / KzU /CF/ INT-7,/ Pt. sri Ram/464O dtd 4.72.77 Page 32 of 145

9830022624(used by Sajal Das)

F.No. s33- 2312017 ADIN (A&A)different importers, seized by DRI Kolkata in connection with this massive smugglingcase at ACC Kolkata appeared to be not genuine.

37,2. Accordingly, under DRi Kolkata letter 28.08.2017, ADG (Systems), RiskIvlanagement Division (RMD), Mumbai was requested to provide the details of theauthorised representative of the IPR right holder of 43 brands of wrist watches,including the said brands found in the subject consignments, registered withCustoms authorities as required under IPR (Intellectual Property Rights) Rules 2007.By email dated 29.08.2017, RMD Mumbai provided list of the representatives of rightholders of 18 brand of watches, and the list of the representatives of right holders ofNIKE, ADIDAS and GAP shoes who are registered with Customs authorities

37.3. Under DRI Kolkata letter dated 37.08.2017, the representatives of the said 1Bbrands were requested to join the proceedings in terms of the provisions ofIntellectual Property Rights (Imported Goods) Enforcement Rules, 2007 (hereinafterreferred to as IPR Rules, 2007). The letters were sent to their respective e-mail IDsas well as their correspondence addresses by post. The 5 representing firms, namely,(1) M/ s United Overseas Trade Mark Company, (2) Dahlia Sen Oberoi, (3) S.Majumdar & Co., (4) Rahul Sethi, (5) Kxishna & Saurastri responded to join theproceedings. However, the other two, namely, Swatch Group (India) Private Ltd andDe Penning & De Penning did not respond.

37.4. Meanwhile, Advocates for United Overseas Trade Mark Company visited theoffice of DRI, Kolkata and claimed that they have also hold rights for AUDENARSPIGUET, BURBERRY AND EMPORIO ARMANI. They fufther informed that SwatchGroup (India) Private Ltd hold the rights of RADO.

37.4.1. Further, by letter dated l8th )uly , 20t7 , M/s Anand & Anand claimedholdlng rights of 10 Brands. As it was found in contradiction with the list provided byRMD Mumbai, under Kolkata DRI's letter dated 31.08.2017, clarification was soughtfor in this regard. By mail dated 31/08/2017, RMD intimated that PIGUET andBURBERRY are not registered with Customs. It was fufther intimated that regardingEMPORIO ARMANI, the authorised representative is M/s S. Majumder & Co. and inthe case of RADO the UPRN is registered at IPR Cell, ACC, Delhi. Accordingly, IPRCell, ACC, Delhi was communicated for RADO and it was reported that M/s DePenning & De Penning is authorised representative of RADO.

37.5. Then under DRI Kolkata's separate letters dated 06/70.1O.2Ot7, CII, FICCIand ASSOCHAM were reported the fact of no response by the authorisedrepresentative of BREGUET 894, LONGINES, NOMOS GLASHUTTE, OMEGA, RADOand TISSOT and they were requested to look into the matter. Further by letter dated26.10.2077, the Chairman, FICCI CASCADE, FICCI was told that in spite of DRI'srequest for joining the IPR proceedings, the representatives of the said brands areyet to respond and it was also requested to take up the matter.

37.4.2. Since no response came from the two representatives, scanned copy ofDRI Kolkata's letter was resent to the email ID of Swatch Group (India) Private Ltdand De Penning & De Penning and they were requested to join the proceedings by25.09.2077. Yet no reply was received by DRI Kolkata.

37.6. Further, under DRI Kolkata's letter dated t3.LO.2017, the above saidorganisations for Industry and Trade were provided the list of 23 brands of watcheswhich are not registered with Customs and it was requested to ask the brand ownerSto participate in the ongoing investigation undertaken by DRI Kolkata and getregistered them with Customs authorities. _. :l .

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37,7. Meanwhile during 12.70.77 to 18.10.17, the representatives of M/s UnltedOverseas Trade Mark Company, Dahlia Sen Oberoi, S. Majumdar & Co. and Krishna &Saurastri examined their respective brands of watches under seizure at ACC, Kolkata,under Panchanama proceedings in presence of officers of DRi, Kolkata and officer ofCustoms, ACC, Kolkata.

37.8. Vide report dated 78.71.2O1f , M/s S. Majumder & Co., the authorisedrepresentative of the brand EN4PORIO ARMANI, opined that all the wrist watchesmarked as EIvIPORIO ARN4ANi found in one of the consignments of M/s Sushil KumarSingh are counterfeit products and those have been imported in contravention of theprovisions of IPR Rules, 2007.

37.9. In course of examination, some shoes of Nike Brand found in the instantconsignment did not appear to be genuine. Therefore, under DRI Kolkata letter28.08.2017, ADG (Systems), Risk Management Division (RMD), Mumbai wasrequested to provide the details of the authorised representative of the right holderof the brand NIKE & ADIDAS registered with the Customs authority. By email dated29.08.2017,RMD Mumbai intimated that authorised representative of right holder forNIKE & ADIDAS brand registered with RMD is Narendra Singh, E-1, Lower GroundFloor, Lajpat Nagar-III, New Delhi-110024 having UPRN Nos. A0097INTKD6TM,A1O11INDEL4TM, AO127INTKD6TM, AlOlOINDEL4TM, A1051INTKD6TM,A1061INTKD6TM, 41071INTKD6TM, A1O91INTKD6TM, AlOO9INDEL4TM,A1OOTIN DEL4TM, AlOO5IN DEL4TM, AlOOSiN DEL4TM, A1006I NDEL4TM.

37.LO, Letter dated 31.08.2017 was issued to the representative of NIKE &ADIDAS with the request to join the proceedings in terms of the provisions ofIntellectual Property Rights (Imported Goods) Enforcement Rules, 2007 (IPR Rules,2007). On 25.11.2017, An authorised representative of the right holder of NIKE &ADIDAS brand examined all the shoes impofted under Bill of Entry No. 9948804dated 03.06.2017 under Panchanama proceedlngs in presence of officers of Customsand DRI and two independent witnesses.

37.10.f. Vide report dated 29.11.2017, Legist IPR Services Limited, New Delhi,the authorised representative of the NIKE & ADIDAS brand owner, opined that all theshoes having brand marked as "NIKE" and ADIDAS imported in the subjectconsignment of M/s Sushil Kumar Singh are counterfeit products and those havebeen imported in contravention of the provlsions of IPR Rules, 2007.

38, Legal Provisions

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38.1. In terms of Section 2(33) of the Customs Act, 1962, "prohibited goods"means any goods the import of which is subject to any prohibition under this Act orany other law for the time being in force but does not include any such goods inrespect of which the conditions subject to which the goods are permitted tobe imported or exported have been complied with.

38.2. In terms of In terms of Section 2(39) of the customs Act, 1962,"Smuggling", in relation to any goods, means any act or omission which will rendersuch goods liable to confiscation under Section 111 or Section 113 of the CustomsAct, 1962.

38.3. Section 46 (4) of the customs Act, 1962 provides that the importer whilepresenting a bill of entry shall make and subscribe to a declaration as to the truth of

F.No. S33 2312017 ADJN (A&A)

the contents of such bill of entry and shall, in support of such declaration, produce tothe proper officer the invoice, if any, relating to the imported goods.

38.4. Further, in terms of Rule 11 of the Foreign Trade (Regulation) Rules, 1993, onthe importation into, any customs ports of any goods, whether liable to duty or not,the owner of such goods shall in the Bill of Entry prescribed under the Customs Act,1962, state the value, quantity, quality and description of such goods to the best ofhis knowledge and belief .

38,5. Section 11 of the Customs Act, 1962: Power to prohibit importation orexportation of goods -

(l) lf the ('enlrul Govenrnrent is satisfied thul it is necessury- so to do.fbr ut1, rf lhe;turpses specifiecl insub-section (2), it nuy. by notificotion in the (fficial Gazette. prohibit eilher absolulell' or subject to suchconditions (to be fulfilled before or aJier clearonce) as nny be specifiad in the notificatiott. the inryorl orexport oJ goods ofony specifed descriptiort.

(2) The pttrpses referred lo irt sub-section (l) ure lhe follov,ilrg:-

(n) the protection ofpotents, lrudenrurks I [, crtpy'ights. designs and geogrttphicul indictttions]:

(u) the prevention of lhe conlravention of any km, for the lime being in force:

38.6. IPR Rule, 2OO7: [Notification No. 47 /2OO7-Cus. (N.T.), dated 8-5-2OO7]Vide the referred Notification dated 08.05.2017, in exercise of the powers conferredby sub-section (1) of section 156 of the Customs Act,1962(52 of 1962), read withclauses (n) and (u) of sub-section (2) of Section 11 of the said Act, the CentralGovernment hereby makes the following rules, namely:-

1. Short title, commencement and application. -

(,(i,(iii)

These may be called the Intellectusl Property Rights (Imported Goods) Enforcenent Rules, 2007.

They shall come intoforce on the date of their publication in the Officiol Gazette.

They shall apply to imported goods.

38.6.1. In terms of Rule 2 (a) of the IPR Rules, "goods infringing intellectualproperty rights" means any goods which are made, reproduced, put into circulationor otherwise used in breach of the intellectual property laws in India or outslde Indiaand without the consent of the right holder or a person duly authorized to do so bythe right holder;

38.6.3. In terms of Rule 2 (c) of IPR Rules "Intellectual property law" means theCopyright Act, 1957, the Trade Marks Act,1999, the Patents Act, 1970, the DesignsAct, 2000 or the Geographical Indications of Goods (Registration and Protection) Act.1 000.

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38.6.2. In terms of Rule 2 (b) of the IPR Rules "intellectual propefty" means a

copyright as defined in the Copyright Act, 1957, trade mark as defined in the TradeMarks Act,1999, patent as defined in the Patents Act, 1970, design as defined in theDesigns Act, 2000 and geographical indications as deflned in the GeographicalIndications of Goods (Registration and Protection) Act, 1999;

38.6.5. In terms Rule 6 of the IPR Rules, 2007 - After the grant of theregistration of the notice by the Principle Commissioner of Customs or Commissioneron due examination, the import of allegedly infringing goods into India shall bedeemed as prohibited within the meaning of Section 11 of the Customs Act, 1962.

38.6.6. In terms of Rule 11 of the IPR Rules, 2007, the disposal of the goodsinfringing the Intellectual Property Rights are provided and the rule 11 reads as:

(1) ll here upon delerminolion by the Deputy Comnrissioner of Custonts or Assistanl C'ommissioner ofCustonts , as lhe case mqt be, il is found that lhe goods detuined or seized have infringed intellectualproperty rights, and have been confiscated under section lll (d1 of the Cuslons Acl, 1962 and no legalproceedings ure pending in relation lo such delentination. lhe Deputy Commissioner of Customs orAssistant Commissioner of Cusloms , as the case moy be, shall, destroy the goods under ofiicial supemisionor dispose them outside the normal channels oJ comnrerce after obtaining "no objection" or concurrence ofthe right holder or his authorized representative:

Provided that if the right holder or his authorized representative does nol oppose or reoct to themode of disposal as proposed by the Deputy Commissioner of Customs or Assistont Contntissioner ofCusloms , as lhe case moy be, within tutenty working days after hcning been infornred, or y,ithin suchexlended period as may hove been grmted by the Commissioner al the request of the right holder, notexceeding another twenty working dctys, he sholl be deemed to hsve concurred with the ntode ofdisposal asproposed by the Deputy Comntissioner ofCustonts or Assistant Commissioner of Customs, as the cose moybe:

Provided further that the costs tov,ard destruclion, demurrage qnd delenlion charges incurred tillthe tine ofdeslruction or disposal, as the case may be, shall be borne by the right holder.

(2) There shall not be allowed the re-exportation of the goods infringing intellectual property rights in anunoltered slale.

(j) The Deputy Contmissioner of Custonts or Assistant Comntissioner of Customs, as the case may be, ntayon his own, or at the request of the right holder, relain samples of goods infringing intellectual properlyrights prior to their destruclion or disposal and provide the same to the right holder or importer d suchsamples are needed as evidence in pending or future litigations.

38.7. Section 111 of Customs Act 1962 specifies provisions for Confiscation ofimproperly imported goods, and reads as -

I I L The following goods brought from a place outside India shall be liable to confiscation:'

(d) "any goods which are in?ported or oltempted to be imported or are brought within the Indian Cuslomswaters for the purpose of being imported, contrary to any prohibition imposed by or under lhis Acl or anyolher l6t for the tinte being in force;"

(fl "any dutiable or prohibitetl goods required to be menlioned under the regulalions in an import mqnifesl.

or import report which are not so mentioned;"

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38.6.4. In terms of Rule 2 (d) of the IPR Rules" right holder" means a naturalperson or a legal entity, which accordlng to the laws in force is to be regarded as theowner of protected intellectual property right, its successors in tltle, or its dulyauthorized exclusive licensee as well as an individual, a corporation or an associationauthorized by any of the aforesaid persons to protect its rights

I I. Disposal of infringing gootls.-

38.8. Further Section 119 of the Customs Act. 1962, provides any goods forconcealing smuggled goods shall also be liable to conflscation and reads as :

Any goods ttsed.fitr concealing smuggled goods shall also be littble to confiscotion. Erplunotion. In thissection, "goods" dltes nol include a conreyance used as a neans o/ transporl.

38.9, Section 112 of Customs Act, 1962 Penalty for improper importation of goods,etc., and reads, inter-alia, as

Any person,-(a) who, in relalion to any goods, does or omits to do any act which act or omissk)n would render suchgoods liable to confscalion under seclion I I l, or abets the doing or ontission ofsuch an acl, or

(b) who acquires possession of or is in any wsy concerned in carrying, remoting, deposilitg, harbouring,keepitrg, concealing, selling or purchasing,' or in any other nrunner dealing wilh any gnds u'hich he htou'sor has reason to believe are liable to confiscation under section I I l,

(i) in the case of goods in respect of which any prohibition is in force under lhis Acl or any other law forthe tinte being in force, to a penalty I [nol exceeding the value of the goods or fwe thousand rupees],whichever is lhe gyeoter;

38,10. Section 114AA of Customs Act, 1962 provides penalty for use of falseand incorrect material and reads as

If a person knowingly or intentionally makes, signs or uses, or causes to be made,signed or used, any declaration, statement or document which is false or incorrect inany material particular, in the transaction of any business for the purpose of this Act,shall be liable to a penalty not exceeding five times the value of the goods.

39, Prohibition on the consignments:

39.1. Now in the subject case, M/s Sushil Kumar Singh did not make truthfuldeclaration in the subject two Bills of Entry or related Involces submitted beforeIndian Customs as required in terms of Section 46(4) of the Customs Act, 1962.

39.2. They have also failed to declare the correct description of the productsimported and have hence contravened the provisions of Rule 11 and Rule 14 of theForeign Trade (Regulation) Rules, 1993 inasmuch as they knew that the declarationsmade by them were false with regard to description, quantity, quality and value ofthe products lmported.

39.3. Further, he also failed to declare the true content of the consignment in theAirway Bill No. 21715543404 and thus attempted to import another consignment ofmotherboards/ speakers/ accessories for branded LED TVs in the guise of electronicparts without declaring the branded and high-value nature of the products being

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tunloudirry Iltcrutf :"

nurcle nrler tltis Acl. or in lhe c'o.se ol huggugc irt the dct'louticttr nrutle mrler set'tion -1:"

lnt) "tul grrxls v'ltiLh do not corresporul in r?:;pecl of tttluc u" in ot ollter pLoliculut'vilh the enlr.t'nrutle wttler lhi.s Ao or in the cuse of buggoge tilh the tletlur ion ntode utder seclitttr 77 in rL,.\pcLt

thcreol, or in lhe cuse rll good.s under lr(otshipnrcnt. v'ith the declctration Jbr tran.sshipnrcnl relbrred lo inthe protiso to strb-section (l ) ofseclitn 51 shall bc liuble lo cort/iscution".

F.No.533- 2 3/2017 ADJN (A&A)imported by them in violation of the provision of Section 111(f) of the customs Act,1962 and thus the consignment for which the Bill of Entry was not filed also appearsconfiscable under Customs Act, 1962.

39.4. Further, as discussed above, the 6 pieces of wrist wastes marked as EMpORIOARt'4ANI, having seizure value of Rs. 7,72,374/- imported under cover of Bill of EntryNo. 9948788 dated 03.06.2017 and 2952 pairs of NIKE shoes having seizure value ofRs 7,26,32,400/- and 1008 pairs of ADIDAS shoes having seizure value of Rs 69,72,OOO/- imported under cover of the Bill of Entry No. 9948804 dated 03.06.2017 byM/s Sushil Kumar singh have been imported in blatant violation of the provisions ofIntellectual Property Rights (Imported Goods) Enforcement Rules, 2007 read withclauses (n) and (u) of sub- section (2) of Section 11 of the Customs Act, 1962.

39.5. Thus, the said 6 pieces of wrist wastes marked as EMpORIO ARMANI havingseizure value of Rs. 1,72,374/-, said 2952 pairs of NIKE shoes having seizure valueof Rs 1,26,32,40O/- and 1008 pairs of ADIDAS shoes having seizure value of Rs69,12,000/-shall be deemed as prohibited within the meaning of Section 11 of theCustoms Act, 1962 and are liable to be destroyed under the provisions of Rule 11(1)of the IPR Rules, 2007.

39.6. In view of the above, it appears that 6 pieces of wrist watches marked asEMPORIO ARMANI, having seizure value of Rs.7,12,374/- impofted under cover ofBill of Entry No.994B7BB dated 03.06.20-17 and 2952 pairs of NIKE shoes havingseizure value of Rs 7,26,32,4OO/- and 1008 pairs of ADIDAS shoes having seizurevalue of Rs 69,12,000/- imported under cover of the Bill of Entry No. 9948804 dated03.06.20t7 in contravention of the provisions of Section 46 of the Customs Act, theForeign Trade (Development and Regulation) Act, Foreign Trade (Regulation) Rulesand Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 readwith clauses (n) and (u) of sub- section (2) of Section 11 tantamount to prohibitionof the nature as defined by Section 2(33) of the Customs Act, 1962 and hence, areprohibited within the meaning of Sectlon 11 of the Customs Act, 1962 and are liableto confiscation under Section 111(d), 111(f), 111(i), 111(l) and 111(m) of theCustoms Act, 1962.

39.7. Further, the other items i.e. Wrist Watches of brands BURBERRY, CARRERA,CARTIER, GUCCI, LONGINES, MICHAEL KORS MONT BLANC, OMEGA, PATEKPHILLIPE PIAGET, RADO, ROLEX, TISSOT having seizure value of Rs. 3,15,13,918/-together with the High Value branded mobile phones, Branded Earphones, Brandedheadphones and branded mobile covers etc together valued at Rs. 4,73,89,139/- asdetailed in the Annexure to the notice were not at all declared/ not fully declared(complete with brand names) in the concerned Bills of Entry or Invoices. It thusappears that these goods were imported by M/s Sushil Kumar Singh under Bills ofEntry Nos. 9948788 and 9948804, both dated 03/0612017 also cannot be treated asbonafide import as they were grossly misdeclared in terms of description, value,quantity and quality and appear to have been imported illegally into India incontravention of the provisions of Section a6 @) of the Customs Act, L962, Rule 11and Rule 14 of the Foreign Trade (Regulation) Rules, 1993 and thus appears to beprohibited within the meaning of Section 2(33) of the Customs Act, 1962 and areliable to confiscation under Section 111(d), 111(f), 111(i), 111(l) and 111(m) of theCustoms Act, 1962.

39.8, In view of Section 2(39) of the Customs Act, 1962 the imports made underBills of Entry No. 9948788 and 9948804, both dated 03/06/2017 and theconsignment attempted to be imported under the Airway Bill No. 21715543404 dated

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hereinbefore tantamount to smuggling and are liable for05/06/2077 as discussedconfiscation.

40. Accordingly, based on the above investigation,

(i) M/s Sushil Kumar Singh, IIEC-0206016417] Proprietor Sri Ram Traders, 28,Jhill Road, Cosslpur, Kolkata-700002 (through its proprietor Shri Sushil Kumar SinghSingh ),(ii) Shri Shahansha Mallik Alias Badshah,60/H /11,, Dr. Sudhir Basu Road (BiscuitGalli), Khidderpore, Kolkata-7 0OO23,(iii) M/s Sadguru Forwarders Pvt. Ltd., Customs Broker (CHA) Hall, 15/1 StrandRoad, Gr. Floor,Kolkata - 700001(iv) Shri Navneet Kumar, Flat No. 303, 3rd Floor, Block:D-4, Kendriya Vihar Phase-II, 169, Badra North, Shaktigarh. Birati, Kolkata - 700051(v) Md. Nasir Uddin, Vill. - Chowmoha. P.O.- Mudiahat, P.S. - Shasan,24 Parganas(N), Kolkata - 700128(vi) Ms. Swati Vora @ Monika,Sai Krupa'A'CHS, 2nd Floor,2O7/A, Vinayak ThakurNagar, Goddev Naka, Bhayander (E), Thane - 401105, Maharashtra(vii) Shri Sajal Das,68/38 Jessore Road, Amarpally, Kolkata -700074(viii) Shri Aloke Ghosh, Vill.- Beraberi Ghosh Para, P.S. - Rajarhat Gopalpur,Kolkata - 700136(ix) Shri Vikki Kumar, Eastern Tower, Flat - 2E,398 Ho-Chi-Minh Sarani, SakuntalaPark, Kolkata - 700061(x) Shri Pranabananda Bala, Near Ananda Bhaban, Durga Nagar South, RabindraNagar, Kolkata - 700065(xi) Shri Santosh Mishra, C/o Dabke Clearing & Forwarding Pvt. Ltd., UsasiApartment. Ground Floor, Room No. 1, 381/1 Motilal Colony, 2 No. Airport Gate,Kolkata - 700081(xii) Shri Arnab Sinha, Director NAF Logistics, 20, N.S.Road, Kolkata-700001(Residence- 4512/tl]' , Choudhurypara Lane, Howrah-711104 and(xiii) Shri Joydeb Das, C/o Dabke Clearing & Forwarding Pvt' Ltd., Usasi Apartment,Ground Floor, Room No. 1, 381/1 Motilal Colony, 2 No. Airport Gate, Kolkata -700081, had been called upon to show cause in writing to the PrincipleCommissioner/ Commissloner of Customs (Airport and Air Cargo), Custom House,15/1, Strand Road, Kolkata-7o0 001 within 30 days of receipt of this notice as towhy:-

4O.1. The said 6 pieces of wrist watches marked as EMPORIO ARMANI, havingseizure value of Rs. 1,L2,374/- together with Wrist Watches of brands BURBERRY,

CARRERA, CARTIER, GUCCI, LONGINES, MICHAEL KORS MONT BLANC, OMEGA,

PATEK PHILLIPE, PIAGET, RADO, ROLEX, TISSOT having seizure value of Rs.

3,15,13,918/- and the High Value branded mobile phones, Branded Earphones,Branded headphones and branded mobile covers etc. together valued at Rs.

4,73,89,t39/- imported under cover of Bill of Entry No. 9948788 dated 03.06.2017and 2952 pairs of NIKE shoes having seizure value of Rs 1,26,32,400/- and 1008pairs of ADIDAS shoes having seizure value of Rs 69,12,000/- imported under coverof the Bill of Entry No. 9948804 dated 03.06.2017 and the Motherboards, Speakers,logic cards and other accessories for branded televisions imported under cover of theAii Way Bill No. 2t7 L55434O4 dated 05.06.2017 having a total seizure value of Rs

6,55,9571- should not be confiscated under Sections 111(d), 111(f), 111(i), 111(l) &111(m) and section 119 of the customs Act,1962 read with Rule 6 of IPR Rules,

2OO7 on the grounds discussed in the Show Cause Notice.

4O.2. Out of the said seized goods, 6 pieces of wrist watches marked as EMPoRIO

ARMANI, having seizure value of Rs. 1,72,374/- and 2952 pairs of NIKE shoes havi.hg , ,,

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seizure value of Rs 1,26,32,4O0l- and 1008 pairs of ADIDAS shoes having seizuTevalue of Rs 69,12,000/- should not be destroyed in terms of Rule 11 (1) of the IPRRules, 2007 on the grounds as discussed in the Show Cause Notice.

4O.3. Penalty under Section 112(a), Section 112(b) and Section 114AA of theCustoms Act, 1962 should not be imposed on each of them on the grounds asdiscussed in the Show Cause Notice;

4L. Defence Submission

41.1. Sushil Kumar(Noticee No.1)

Singh IIEC-O2O6OL64L7) Proprietor Sri Ram Traders

41.1.1 Vide letter dated 04.01.2018, Shri Sushil Kumar Singh had inter-alia deniedand disputed the allegations levelled against him along with request to grant him 30days.

41.1.1.1. Vide reply letter dated O2.O2.2O18 issued via speed post, Shri SushilKumar Singh was directed to submit his representation within stipulated mentionedin the SCN and that his request for additional time was rejected.

41.2, Shri Shahansha Mallik Alias Badshah (Noticee No.2)

41.2.t. Shri Shahansha Mallik had submitted letter dated 21.02.2OtA, wherein,it has been stated, inter-alia, that:-

"l.l am in receipt of the subject Shou, Cause Notice issued in conneclion to sei;ure of importconsignments of l,I/s. Sri Ram Traders al Air Cargo Complex, NSCBI Airport, Kolkata by the fficers ofDirectorate of Revenue Intelligence, Kolkata. The Show Cause Notice rellecl.s lhe entire investigationcarried out by DN Authorities at Air Cargo Complex, Kolkata with respect to 3 courier consignmenls andl6 commercial intport consignmenls examined during the period from 5.6.17 to 1.8.17. h is alleged thqt inconnivance of Customs officers at ACC, NSCBI Airport, Kolkata huge misdeclaration was made in the saidconsignments. The import consignments of Ws Sri Ram Traders is also parl of such examinalion andseizure.

2.lt is alleged that rhe IEC of tl/s. Sri Ran Traders was lenl out lo me and I was importing suchgoods on the strength of IEC of Sushil Kumar Singh, Proprielor of lv[/s. Sri Rant Traders. During the

course of investigatio , Sri Sushil Kumar Singh in his alleged stotemenls before the DRI Authorily hodstated that lhe consignment under Bill of Entry No.9918788 dated 3.6.17 was being actually imported by

me and the consiqglment under Bill of Entry No.9918801 dated 3.6. l7 u,as actually being inrported by ShriNqvneet Kumar, Deputy Commissioner of Custonts, ACC. Investigation was also cau.sed wilh me when Ihad categorically stated that I was only importing Chinese Mobile handset and ntobile occessories such os

bock cover, screen guards etc. The goods allegedly recowred from lhe consignment under Bill of EntryNo-9948788 dated 3.6.17 was in facl at the instance ofSri Navneet Kumar, Dy. Commissioner of Customs,

ACC, Kolkata. I u'as pul lo affest on 25.7.17 under Section 101 of the Customs Act, 1962 alleging my

involvement in the alleged misdeclaration of import consignmenl. It is also alleged in lhe Show Couse

Notice that on examinotion, it was found thol lhe consignntenl under Bill of Entry No.9918788 was

corrying high valued wrist wotches snd branded mobilc phone in addition to declared back cover,

tampered glass, cable wire, hands free, housing(branded) LCD etc. The declared value ofthe consignment

was P.s.1,29,310.29 and the sonrc was assessed by lhe Customs Authorilies after enhancing lhe value alRi.1,33,603/-. The goods u,ere revolued at Rs.7,90,15,43I /- by the DN Authorities on invenlorisation. Thus,

it is alleged that lhe goods were grossly nisdeclared wilh respect b its descriplion, quality ond value.

Proposition has been made for conrtscation of the said goods and imposition of penalty under Section

11;@, lt2@ and 114AA iJ the C)*oms,lcr, lgCZ. L ii also atleged-in the Show Cause Notice thar. on "verifcation under IPR Rutes, 2007, the wrisl walches branded as "EMPORIO ARMANI" are found |o"b€

counterfeit. The branded shoes recovered from consignnrcnt under Bill oJ Enrry No.9918801 weie also .

opined to be all counterfeit andfor lhat reason, lhe said goods u'ere held to be prohibiled in ndlure: "., "i'

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3..1t ltunrgraph 30.) ol tltL,,\ltott ('ult.\c' .\oti.(. nt) nit lu.t heL'n.'ulminut?d tni it i.r ullcgti thut I

hccana purl of st'ndi<'ulc. ,4<tttrdingh. penul udiort lru.r hccrt ltn4xt.sed aguirr.sl nrc.

F.No. 533 23l2017 AD]N {A&A)

1.ln rcplt. J funr un(l (lisput? tlrc ull(gution.\ so nrult,ullrin.st nta

5.Ba/ore going inlo lllc dduil.\ of lltc ullegution.\ in the Shov ( uu.sc Nttitt,. it i.\ subntiltcd helbrctour kirrlsell thut lha vrlue tl the gootls urtlersci:ur"c rcfletted in clml forn ut pugcs 6.7.8 & 9 ol the,Shor Cau.se Nolice. oppeur:i to be value udopted hr htver;ligalinq Aulhoril1 itt lh(. inlenlort, of the good.sy'ithoul ttrl'basi.s. The Show Cause Nolice relics upon us ntony us 105 docuncnts. bul neilher lhe ShottCouse Nolice nrr the Lisl of Reliad Uport Dot'umcnls prtnide,s uny docunrertt tt'ilh respa.l lo't'uluution oJ

the goods under seizttre. The talualiott reJlected in lhe Shott Cause Notice is also not providing the unitvalue ofany oJ the goods. The basis of the rt uation i.s ttox,here reflected in the Shoy,Cause Notice. Assuch, it is tery dfficult to appreciate such vuluation adopted by lhe Invesligalittg Authority.

6. It is furlher lo submit thal unles.s and wtlil propar und legal basis of the valualion is prot'ided, lhevaluolion so arived at by the htestigatirg Authority cantnt be considered ftr adjudication of the presentShov, Couse Notice.

9.Under the circu slances, before proceeding further in the presenl odjudication proceeding, Ihumbly pray before your kindselffor necessary directior? upon the Show Couse issuing aulhority to provideme lhe proper and appropriote valuation of the goods under seizure issued by any outhorized and opprovedvaluer of Customs. On the basis of arbitrary valuation of lhe goods by the Investigating Aulhorily,adjudication proceeding cannot be conlinue inasmuch as the value of goods has direct nexus with the penalprovisions under the Custonts Act, 1962.

l|.Further, it appears from the Show Cause Notice thal lhe entire allegation against me has been

framed on the basis of statenlent of Shri Sushil Kumar Singh. Prcprietor of Shri Ram Troders and ShriAruab Sinha, Director of NAF Logistics. It is allegedly subntitted by Shri Sushil Kumar Singh that he hadlent out his IEC to me and he has also lent out his IEC to Arnab Sinhs (paro 10.1.3 of Show Cause Notice).

He further stated that I was imporling mobile parts and accessories whereas using his licence Shri Navneet

Kumar, Dy. Contmissioner wqs ulsts importing the goods (para 10.1.5 of Show Cause Ncttice). Whereas,

Shri Arnab Sinha in his statement had allegedly stated before lhe Investigatirlg Authority thal he hadprovided me the number of Sri Sushil Kumar Singh, who was actually IEC lender. Sri Sushil Kumar Singh

has allegedly stated that I took him kt lhe office of Shri Nnneet Kumar whereas, Shri Navneet Kumar inhis statenrcnl had categorically denied the sante.

7. The valuation of dilferent goods arrited ot in the Show, Couse Notice is also ntisconceived.Admittedly, the grnds under Bill of Entry No.9918788 were invenlorised on 21.6.17 v,hen the lolal valuey,as arrived at Rs.7,90,15,131/-. Such value w,us includitg value of 6 pieces of EMPONO ARMANI u'ristv,atch os k.1,12,371/-. The Shov,Cause Nolice at para 19.7 provides that such 6 pieces ofwrist watch aswere found to be comterfeit. Inspite of the sanrc, at paragroph 29.2 of the Show Cause Notice the talue ofthe said wrist wotches were kept at Rs.1,12,374/-, as v,as ossessed at lhe ti,ne of invenlorisalion. In case ofcounterfeit goods, value connol remain sante. Further, v'ith respect to shoes under Bill of EntryNo.9918801, at paragraph 19.8 of the Shov,Cause Notice, it is held thot all the shoes were cotmterfeit butat poragyaph 29.2, the value of the seized shoes renruins same as was made durhg invenlorisation on22.6.17 (para 7.2.8 of Show Cause Notice). This is absurd.

8. I humbly subnrit lhat either the allegation of counterfeit is erroneous or the valuation arrived at,

is not proper and correct nolwilhslanding the fact thot no basis ofvaluation is indicated anyvhere in theShow Cause Notice.

1 1.In the aboye circumslance, it appears thal lhere are several discrepancies in the stotemenls ofShri Sushit Kumar Singh and there are also conlradictions in the slatements of Shri Sushil Kumar SinghShri Arnab Sinha and Sri Nqvneet Kumar. Since the allegations against me are solely based upon

slalements of the abotenantetl persons, I pray for opportunity of crc.,ss-.exantination of the soid 3 perso.iis '

beforethenrulteris'finallyadjudicated.SincealltheSlatenrcnlSoftheabovenomedperSonSwererecordedt ;;j.,, .i.r''

SCN: DRI/KZU/CF/INT-75/ Pt. Sri Ram/464O dtd 4.72.77 PaBe 41 of 145 ':' ;i

Lokr.,,',,!,i;,ti,,1r,1',!,'f ,:,1"i;;i,,1:::lto terifi'lhc tenrilt of such .rtuttnrar s ht vut of < rr t.r.r-etLrnt inut iott.

I )..1tardingl.r'. it i.'; ltunthl.t ltru.ttd hc/brc _tour kirnlsalf thet I nu.t kintll.t ha gruntcd \.ith

und ,Sri Nutttcel Kuntur (Nolicca no.4). lt is ulso settletl ytsiliut of luu lhat o ll?(r sole bu,sis of stutetnent

etu tt in a I ion i s prot'icl ed.

I J.l most htnnhll' prt4, helbre .voto' kiniself thut I nruv kindl.t he perntitted to.lils n1.1,.final repll tolhe Shov ('uttse Notice t1/ier proriding the docuntenls vilh respect lo ruluation. as indicaled uhot'e. uul theopportlotiti?s of cntss-exuninttlions, as prulecl hereinubot'e. I not, also be pro.r,ided v'ith opportutlit.t' o/persurul heuring before the maller is finully udjudicuted. I reserve ntv right to antend. alter or add n4'conlenliotls beJbre the nrutter is fnully adjudicared. "

4t.2.2, Shri Shahansha Mallik had further submitted common letterdated12.07.2018, wherein it has been stated, inter-alia, that:-

"The Hon'ble High Court, Calcuttu t'ide Judgentent dated 10.07.2018 in W.P. No. 3336M)[Nattneet Kuntar -vs.-Uniott of Indio & Ors.) has been pleased to quctsh the above referred SCN, antongstother, on the ground ofjurisdiction.

ln view of the obove, you ore requesled nol to proceed further v'ith adjudicotion of such SCN. Incase of any chtmge circ tlstonce, I nruy kindly be put to notice with sfficient tinrc for necessory oction otthis end. "

4L.3, M/s Sadguru Forwarders Pvt. Ltd. (Noticee No. 3)

41.3.1. M/s Sadguru Forwarders Pvt. Ltd. had submitted letter dated02.04.2O1A, wherein, it has been stated, inter-alia, that:-'' l.Thsl the above Show Cause Notice has been issued to us, anrcngst others, by the Ld. Additional DirectorGeneral, Directorate of Revenue lntelligence, Kolkata Zonal Unit, Kolkate on various frivolous andpurported gyounds lo unnecessarily harass the Nolicee company and we have been asked to show cause asto u,lry penalty under sectkn 112(a),1124) and 111AA of the Customs Act, 1962 shall not be inposed uponus w.r.t. alleged misdeclared intport consignnrcnt ofSri Sushil Kuntar Singh. Prop, of l4/s. Sri Ram Trodersunder B/E Nos. 9918788 und 9918801 both dared 03.06.2017 and Air lkn bill No.21715513101 doted05.06.2017.

2.Before dealing with the contents ofthe said purported Show Csuse Notice ot the very outset wedeny and dispute all the allegations made in the said purported Show Cause Notice.

3.We state that afler obtaining CIA/CB License, ltAs. Sadguru Forwarders Pvt. Ltd. has beenperforming their duty with utmost integrily and by maintaining all the Rules and Regulation and wereacting through their Authorized Signatory/ 'F' Card holder Sri Sukhendu Maity, who breathed his last on07.11.2017.

4.The allegation in the above said Show Cause Notice is that we allowed Md. Nasir Uddin lo clearthe imported goods of dffirenl parties for nronetary consideralion and had never checked the authenlicilyand sanctily of importers and without kttowing the importers, sigyed the imporl documenls for lure ofmoney only (Para 20.1 of SCN.1. It has also been alleged in the said Show Cause Notice that.for thematerial gain we had assisted the racket in the atlempt of illicil inryort of misdeclared contraband goodsand have thus failed to discharge our responsibilities properly/ legally in dealing wilh the subject goodsand we had conscious knot'ledge that rnis-declared goods v,ere intported by lhe imporler and lhe goods areI i ab I e for c onfi s cat i on.

5.The SCN refers to the slatement of Shri Aloke Kumar Ghosh, 'G' Cord holder, who ad?d q, :.>behalf of A4/s. Sadguru For"w'arders Pvt. Ltd. The said Aloke Ghosh in his statement dated 08.06.2017t.hq;

^'t...allegedly odmitted that he did not knov, the otner of the A4/s. Sadguru Forwarders Pvl. Ltd., and'he was ' ''

.l::, ;, , i.;SCN DRI/KZU/aF/INT-7,/ Pt. Sri Ram/464o dtd 4.72.77 eaee a2 'of 1li

;- -rr.

v F.No. S33 2312017 ADJN (A&A)

L'tftlin hu.s ullcgadlt udntiltcd in hi.s :ite uneut tlut lrc used to clettr c'urgos ol dillirent inrporlers iu theq rc of (.LtsloDt,\ Brokcr f,|,.s. Sutlguru li.tntutlcrs Pfl. l.l(1. Thcrelbre, it tqtpcLtr.s -fron ll?e slutunent of

Ittd. Nctsir Uddin thut htt is the nruin person v'ho usetl thc nonrc ol M/s. Sudguru I'<.utrunlers Pfl. Ltd.. inthe Bill ol Entn'us ('ustotts Broker. lt is ctl.yo the ullegotion ut Paru 30.7 o/ th? suhj ect S('N that AlokeGhosh httd "alloted his licence lo be used b.y' u group of persons v,ho, he kney' thut. yrtuld be bringingmisdeclored goods ond. evde huge untounl of ('usloms dult) in lhal procers". It is olso olleged that he hadntisused his cord/licence qnd reckless ly focilitated the Custonrs clearonce ond hence, liableJbr penal action.

6.We .strhntit thut it i.\ the cuse of Deptrtnent thul Shri Aloke Ghosh ullegedlv nrisutilized thelicence grented to hint und he hud the .full hnu,ledge of conJiscable nutura of goods. Therefore. theproposition for inposition of penalty upon lhe sqid Noticee conpony is absoltlely buseless und not at allnninlainable. No seporote or specifc allegulion hus been ntade againsl lhe Nolicee cozry)any. Rather, it isalleged ut Para 20.1 ofS('N thctl "the licence of the Cuslonrs Broker M/s. Sudguru F<tru,orders Prt. Ltd.v,us nris-utilized by Md. Nasir Uddin h clearunce nf the misdeclared general Import consignnrcnts at theinslonce of Navneet Kunnr. DC". ln such circtonstance, no penal action against us is u'errqnted.

7.We further submil lhal il is for lhe Departn?ent frst to decide the role of the Noticee CB in theitlstont cose. If there is no allegation of prior knou,ledge even on the port of the contpanv and lhere is noeyidence on-record lo suggest lhol we hod any prior knowledge of con/iscable nalure of goods, noprovision ofSeclion 112(b) of the Customs Act,l962 is invokable agoinsl us. Neilher Aloke Ghosh nor Md.Nasir Uddin in any of their stalenents had qdmitted lhat the CB had any prior knowledge of any mis-declaralion in lhe irnporl consignment.

8.7he stotement of Sukhendu Maity, Authorized SipVatory was oblained only on 27.06.2017wherein he stoted that Aloke Ghosh procured jobs for clearance of lhe consipVnrcnt of dffirent inlportersnruinly from Nasir Uddin and said Aloke Ghosh used to take KYC and Authorization front the importersand kept with hint. He used to sign on the Annexure required for filing of Bill of Entry. Nofurther stalementwas recorded from Sukhendu Maity and il u'ns slated in the said Show Cause Nolice lhal Sukhendu Maitywas expired on 07.1 1.2017. Il is very inleresting lo nole that the DRI authority being nvare of the facl|; thatthe said Aloke Ghosh and/or Sukhendu Maity (since deceased) were neither the Director nor owner of lheCB company, hatte relied upon their slalements and allegation has been mode agoinst the compdny but lheDRI authority foiled lo enquire who are lhe real owner oflhe said comptny and hme nol laken any step toobtain statemenls front the concerned person ofthe Noticee company.

9.All stotements of Aloke Ghosh and Md. Nasir Uddin, as relied upon in the subject SCN, wererecorded behind the back of the notice CB and as indicated supra, the statements are contradiclory andconfusing. At this junclure, lhe slalement made by Sukhendu Maily connot be considered as true andcorrecl os we are unable to cross exomine the said person for wrification of the same. The crossexaminolion of Aloke Ghosh and Md. Nasir Uddin are also essential. On the basis of lhe said slatements,

the Custonr Broker License No. S-116 of the Noticee company has been suspended by the Commissioner ofCustoms (Airport & Administration), Customs House, Kolkala.

l\.Pertinent to mention herein thal against the suspension order dated 07.08.2017 underRegulation 19(l) of CBLR, 2013, we preferred a writ petition being ll.P.No. 22967(W) of20l7 before theHon'ble High Courl, C{tlcutlo when vide order dqled 01.09.2017, the Hon'ble Court was pleased to direct

for flling of affidavit-in-opposilion and reply, f any, thereto, bul nnde it clear that pendency of writpetition will not prevenl the authorities lo consider and dispose of the proceedings pending before il inaccordance v,ith low- Accordingly, (hder-in- Original dated 18.10.2017 was possed hy lhe Ld.Corumissioner of Cuslons (Airport & Administration), Kolkata confrnting lhe suspension underRegulation l9(2) of CBLR, 2013. An appeal under Regulqtion 2l ofCBLR 2013 readwith Sedion l29A ofthe Custonts Act,l962 has been preferred by us before the Hon' ble CESTAT, Kolkata against such order of-suspension under Regulation l9(2) ofCBL& 2013, which is still pending.

I I .I{e humbly stole thet qs staled hereinabove, the DRI Authority has not enquired anything fromthe Noticee contpan! und lhere are seyeral reosons on our porl to dispute the stotenrcnts of Aloke Ghosh

SCN: DRI/ KzU/CF/INT-75/ Pt. Sri Ram/4640 dtd 4.72.77

,)

Page 43 of 145

F.No. s33- 2312017 AD.JN (A&A)

reraul tht u(ltrul /irl he/itrc the Ld. -.lijuiiLuting,.lulhoritr.,luclt opprtt'lurtit.t ma kindlr ha erlcntlctl in

ottt'ttt'itlen subnission. if on\upon lhc ottlLontc' of such c ross-cttun inut ittr r.;.

I2. ll'e ltunthlt suhntit lhql ,\cctiott I l2(u1 und (h) oputt!.\ ut .\ep.u'(ttc Lir(unstun.'e ultogctharurul ul rut c'it'c'rrnt.tlunca. hotlt turt be tqplicLl togelhar. ll oppeo'rj lh.tl tlle ifi\'e,\tiguting t is-u-t,i,s llr shovc.tu:;c issuing oltthorii'tt'us nol sto'e uhoul thc ullegad role ol the Noticee CIJ ctntl hence hud intakel bothlhe provisions, vhich is nol nruintdinqble in law. Neither out'unv act ofconntission and/or onti:;.sion orebalenpnl thereto hds restlted inlo cortJisc'ution qf goods nor v'e had uny prior knox,ledge or redson tobeliet'e about confiscable nalure ofthe inryorted goods. As such, pendl profisio,t ofSeclion I l2 (a) andktr'(b) oJ the Customs Act. I962 is not invocable in lhe present cose ogainst Lts.

I 3. So Jitr us proposition of inrposition of panalty touler Secliort I I 1AA oJ the Custonrs Act, I962 isconcern. vte subntit thal nou,here in the S(W ir ris .\pecirted os to vhich declaration, slotemenl or Llocume lhus heen nrude, signed or used or cqused lo be so bt, us hrotringlv or intantionally thot the some i,s false orincorrect in nolure, in lransaclion of business utder the Act. In such circumslo ce, mechanicdl ondorbitrory penol proposition connot stond. During lhe cour:Je of investigation, no person even slaled Ihot thenolice CB hod any prior k owledge w.r.l. otl.y document/ statement/ declaration u,hich is false or incorrectit nature. Hence, no penally u/s. I 11AA ibid is intposuble upon us.

11. In the subject Shotr Cause Notice il ho:; nol been specified v,hat legal step hos not been

follou'ed by the Noticee company. The Authority concerned had simply made a bald statenrent that legalstipulated duties have not been follou,ed. By the said bald slalemenl no oclion can be taken againsl theNoticee company without verifying the true foct.\ and without obtoining any stotement from the concemedpersons of the Noticee company. Moreover lhere is no chorge under the Custo ts Act has framed againstthe Noticee company. Only the penalty has been proposed againsl Sukhendu Maity (since deceased) andAloke Ghosh. As Sukhendu Maity being breothed his last thereby no chcrge has also been franrcd againslhim. As there is no specifc charge has been made against the Noticee company, os stated supra, therefore,the said Show Cause Notice is liable to be dropped. In the evenl Your Honour like to proceed the said Show

Cause Notice may please be grant an opportunity of personal heming in person or by authorizedrepresentalive of the Noticee company-

lS.ll/e most humbly pray for dropping of the proceeding against us under the subject SCN withconsequentiol relief in our favour. We reserve our righl lo amend, alter or add our contentions before themattel is rtna y adjudicated."

41.3.2. M/s Sadguru Forwarders Pvt. Ltd. had further submitted common letterwith respect to all thlrteen SCNs dated l2.O7.2O1-A issued from ACC, wherein, lt hasbeen stated, inter-alia, that:-

"The Hon'ble High Court, Calcutta vide Judgement dated 10.0.2018 in ll.P No. 3336(ll/) of 2018 [NaweetKumsr-Vs.-Union of India & Ors J has been pleased to quash the above referred SCN, omongsl other, ont he gromds of j wi:tdiction.

In view of the above, you are requested nol to proceed further with adjudication of such SCN. Incase of any change circumstance, we may kindly be pul lo notice wilh sufrcient lime for necessary action althis end. "

41.4. Shri Navneet Kumar (Noticee No. 4)

4L.4,L. Shri Navneet Kumar through Shri Rajnish Kumar Kalawatia, Advocate,Kolkata High Court, had submitted letter dated 23.02.2018, wherein, it has beenstated, Inter-alia, that: -

"This is to infornt you that being aggrieved b, DRt Show Cause Notice no. DR KZU/C F/ENQL50/2017/Pt.- Sri Ran/1630 dated 01.12.2017 issued by the Additional Director Generol, DN, Kolkata

SCN: DRI/ KzU/CF/INT-75/ Pt. sri Ram/4640 dtd 4.72.77 Page 44 of 145.

F.No. S33- 2312017 ADJN 1A&A)V 7,,rrr,l Litit. thr: il'otitt,c ltcing rrt tliant Lthorc rtttrrtatl ltu.s trlrtudt prefbrretl u 'rit Petitittrt heing Ll'.1,. .\:o..l-j10 (l't t ol 20lll hclitrc thc Hon blc High (oun dt (i (uttLt on 12.02.2018.

7he ufbrc.:uid rril l)elilitnt i.r 1tt,tutiry L't)tt.\idt,rution hafort the Hott hle lliglt ('ourt ut ('ul(tutd. .1

ut I3.02.2018. .1 plntocop.t o/ tht suid letter of set'ricc dolctl I3.02.201tt i.s ttrrrrcxatl herevith.

ht t'ictt of thc pettdetttt of tlrc ubovc n:r.,rttiorretl ll;rit qtplit'uliut be/orc thc Hon'hle High ('un't ut

('ul.utl{t. I herehr cull upon .t'ou lo keep in uheyturce urtt ;troceecling ttntlior heo'ittgJirrlher heuringogtrinsl lhe Nolicee being nty, client in llrc nklller lour" ubtnc refcrred nolice 533-23i2017-Adiudication(A&A1 durcd 12.02.2018 till the disposul of the uhoye rcntioned :i.rit petition."

41.5. Shri Vikki Kumar (Noticee No.5)

4L.5,t. Shri Vikki Kumar (Noticee No. 05) submitted an interim reply to the ShowCause Notice vide letter dated 19.01.2018, wherein he, inter-alia, stated that-

"Mosl respeclively lhis is lo subnlit thol the undersigned, Vikki Kunrur, Appraiser of L)usktns(herein after referred to os the Noticee) has been sened with 13 (lhirteen) purported Shov'Cause Noticesissued on various dates as per lhe List enclosed here.

Al lhe very outset the Nolicee denies all the allegations made out in the aforesaid purportednotices lo show cause and submits that oll tha soid purported notices are legctlly unsustainable beingbaseless, vague and devoid of any legally admissible etidence.

The presml proceeding consists of l3 (thirteen) diferent purported notices to shov,cause andthe purporled eyidences run inlo voluminous pdges prottided in a CD's. The purported nolices to shottcause is silenl on lhe relevance of lhe said voluminous pages in lhe present proceeding leaving il lo theNoticee to comprehend v,hot possibly could connect to the allegalions.

It will be appreciated that in view ofvoluminous documents relied upon in lhe purported noticesto show cause, the Noticee will require reasonable time to prepore his comprehensive reply to thepurported )3 (thirteen) nolices to show cause.

All the allegalions contained in the purported notices lo show cause not specifcally dealt v,ithin this reply, should nol be construed as nry adntissions. None of the allegations contoined in the pwportednotices to show cause is admilted. The submissions are made in the ahernative cmd without prejudice to theNoticee.

It is, therefore, requested that the Noticee may kindly be allowed a furlher period of 3 (three)

monthsforfiling his reply to the l3 (thirteen) purporled nolices to show cause."

4L.5.2. Shri Vikki Kumar (Noticee No. 05) submitted another interim reply to theShow Cause Notice vide letter dated 05.03.2018, wherein he, inter-alia, stated that-

"While going through the documents profided by DN on a CD, it wos not stated large numberof documents are illegible and a totolly blurred. The Noticee desires to demonslrote bejore AdjudicatingAuthority the samples of such documents which are absolutely unreadable. All those documents arenecessory for determining the issues involved in the case. Since a large number of relied upon documentsare undecipherable, a serious prejudice is caused to the Noticee and he is unable to file his proper reply tothe notice.

3. In the above situution it is requested thot inspection of the original case file and originaldocunrents may kindly be allowed so thot the Noticee could comprehend the allegations and the noture ofevidence relied upon by the Dkl. The Noticee further requests that he may be permitted lo take noteand photo copies of the releyant documents ofler inspection of the cose file and relied upon documefis.

1. Inspection oJ the original case fle of the DN is required for ascerloining the nantes of persons

including the officers of DN u,ho have inresligaled lhese cuses for the purpose of cross-exantitaliott.

SCN: DRI/ KZU/CF/INT-75/ Pt. Sri Ram/4640 dtd 4.72.77 Page 45 of 145

F.No. 533- 2312017 ADJN (A&A)

l(ll3 und lllL\ stth:iuluL,nl l.t. l)ft)nrul( tt.t .lppnristr in .\,.,1ttL,uthar. )016 und tul ltottL<l u.s Sltttl

\tcrc olltL',' ofli<r:r:; ussigncd tt'ilh lhc ('t(slotn.\ tttrk ul lhc lnryu t Shad ri:.. Biplub Du.s. .l1rrnristt' und

/ittu' Erunincrs. Onc ol lhe E:-uniners. nd rft Prunohatonlu Bulu is u to-Noticee in the cusc. Tlr('ustttttt vttrk ut lltc Sltcd 'r'as trrunuge<l ht tht ubot'e oflicers uuler thc ot'croll supen'ision ol tltDe pu t1' L' ont nr i ss i t nter.

6. 'thc offitar:s ttt the Shcd hud u hcuvt vork loud und us Shed .lppruiscr the urlcrsignul h*l tohundlc unttn 250-3()0 cortsigtntertts ever.t, do.

7. l'ht, pnt<adurc.fiu' ('uslurts tttu'ks rchling lo itnport L'lcurunce . lrorl,s, Ait" porls clc. urt' vt,lltlt'/ined otd ura regululul h.t' llte inslrucliorrs tttnluint'l itt lltt ('ustorns Murnul. Approisirrg Munru .

('iraiu's ttntl ln,stntLlion,\ issued by the CBI('.front tinte to linp utd Trudc/Puhlic Notices oul ln.\truL'lionsissued h.v tht r?sftLlive (.ustonts Connni.ssiot 'rol6. (hdcr tha c.rlunl prrre duulfrcunev'ork.fin' Custon$clentnce lhc role of o/ficcrs are v,ell deJined. The olJitcrs .rc nol cxp ted to deviute rt-ont the spcc'i/ic'roles ds.\igned lo ruth ute of lhem.

B. The undersitprcd hds been served v,ilh l3 Sltov' Cause Notices proposirtg penal oction against hintmuler Sections 112(a), ll2(b) and lllAA of the ('ustons Att, 1962 it nruy kindly be noted thut theNot icee has been c'hurged for penalty under Secl ion I l2(a), I 12(h) and I l1 AA withoul even mentionitglhe specirtc ad or omissiort on the parl oJ the notice thut llould fall mder the four conrcrs of the saidSections. It vill be uppreciated that Section I l2 covers u v,ide spectrunt of specrfrc acts v,hich are nwdepunishable under lhe Act. The essential ingredient of Section ll2 is thot the person proposed to bepenalized should be associaled with the goods in lhe msnner mentioned in the section. The Noticee hasbeen fastened with charges tmder Section I l2 on the streng:lh ofo norrolive \vhich is presented b1t the DRIas afairy tale cmd the purported allegations are vague and the evidences do not connect lo the allegationsin the Show Cause Notice. The entire cose of DRI is based on imaginalion and pure rheloric u,hich oreapparently intended to inJluence the mind ofthe Adjudicating Authority.

9. In a nutshell, the crux of the allegations nrude oul in the Shou,Cause Notice are asfolktws:-

a.) That one Md. Nasir Uddin in his one slolenrcnt sluted thqt Shri Navneet Kunrur assn'ed him abofithe cleo'ance ofthe mixleclaed gotxls srdingth.l Sh.i Vikly Kunrur and Shri Prsnobancmda Bala, both postedat lnrport Shed of Air Cargo Compler, Kolkata are his tru.sted oftcers and they would pose no problent inclearances.

b.) Shri Vikki Kumar and Shri Pranabananda Bala connived with Shri Nsweet liutut', DeptyConnissioner of Custons ud otlurs otd as per dircction of Slo'i Ndweet Kwno used to check only those

co$ignment which were plrced before tfum by tlre Customs Broker. They did not cleck otlcr yxkages/canonswhich contoined mis4eclrred goods.

c.) Tkn ivy M peviow fuowledge thd tfu consignmma contaircd mis&ckt'd guls tley hd not opmedsrch prckqges.

d.) Tha they would fu*e also checlced only the declared gou* plrced before them by Md. Nasir Uddin and

facilitaled lhe import of mis4eclared item by mivsing tluir ofrcial position cord afikrity.

e) Tltd it appeared to the DN lhot Shri Navneet Kumar had inslructed Md Nasir Uddin lo clear the goodrand he cleared goods on eqrlier occasion also by way ofplacing only the declared goods for examinotion aspart ofqndicate.

f.) Tlwt Shri Vikl<y Kumar and Shri Pranabonanda Bala would hrne only checked the declared godsplrced by Md. Nasir Uddin but for the intemention of DN Kolkata.

g.) Thal il appeared lo the DRI thot they received huge omount of ntoney for such examinalion.

h.) Ttut ttp calt delqils record shows thot thcy nade calls tith inporters or lheir reryseruaiw which yms'tlrir c'omplbity in rla: subjecl cate.

SCN: DRI/ KzU / CF/INT-ls / Pt. Sri Ram/464o dtd 4.72.77 Page 46 of 145

F. No. 533- 2312017 ADiN (A&A)

cleurcd utrletccted.

rrtli,,'el.t uilcd oul ohulul the tluhirnt: dasigrt ol th,i' l)altutt' ('ortmri.s.sitttar itt 1tt,rytt:trtrl ittg strclr uIrtrgt' .s<ttlc .snttrggling o/ higlt t'ulue gttttl.t through Air ( urgo (-ontplcx. Kolkqlu ru htu haen hroughtoul hareirt bafort.

l.) Thot ull this hus bean tkne vith ut uinr.fbr pcrxtnul guirt ut tlrc cntense of()ott. Etchcquer.

nt.) Thut il urrs lc4, v,ell v,ilhi thcir knov'ledge lhul lhe gootls lrud ulreudt'been cleuretl orbeing utte lpted to bc cleured hv them ure sntuggled inlo lndia atd ure liuhle to conJiscoliutunder lhe protisions o/ lhe Custo ts Act and their acts ctctually tontantoutll to be smuggling, vetthey subterted the Customs muchinen' in order to.facilitute the cledronce ofsuch goods.

n.) That they cleor"ed such ntis-declared goods earlier too otr several occosion in similor fashiut.

o.) That it tttrs rery well u'ithin their kno\Nledge lhot lhe goods being ofienpled lo be cleared by then aresntuggled into Indiu cntd ure liable lo confscalion undet lhe prot isions of the Custons Act und lheir aclsactudlly tontonnunt lo snruggling, yet, they subverted the Custonts nachinery in order tofacilitate theclearcmce ofsuch goods utd therefore they are liahle to the penalty under the Customs Act, 1962.

p-) Thol the officers had knowingly and intentionally made, signed or used documents whichwere false or incorrecl as lhe mis-decloed ilems were nol mentioned in such docuntents.

q.) That they (the Oficerl knew fully well that mis-declored itents will be imported but it was nolmenlioned in Ihe invoices, packing list and other related import documents, which warronted invocationofSection I l lAA of Customs Acl, 1962.

r.) That Shri Vikky Kumar, Appraiser and Shri Pranabananda Bala, Examiner are liable to a penaltyunder the Customs Acl, 1962 notwilhstanding the provisions of Section I 55 of the Custonts Act, 1962 ssthe oclions as done by them did nol appear lo have been done in good faith and lhus protection underSection I55 should not be available to them for such actions os discussed herein before.

1A The notice will adverl lo lhe above allegotions in detail after inspection of the relied upon docttmmtsand cross-examination of the persorc whose statements have been relied upon in the Show Cause Notice and ofthe fficers of the DRI who have inttestigated. At this stage, the Noticee desires to place on record that all the

above allegation are nolhing but too hypothetical to call for a legal response. Needle.ss to soy, theNoticee ytas working under a hierarchical syslem under which mandates obedience of instructions

Jlowing from the superior aulhorities. Being a trusted fficer is not a choice but a responsibility castupon the sub-ordinate offcers in the hierarchical order. Further, the law does nol permit a sub-ordinateofficer to sit in judgmenl over an order from a superior outhority and decide the legality or otherwise ofeach and every order given by a higher authority. It is s maller of basis common sense thot if anodministrative struclure has to function in an efficient manner, lhe hierarchy of contmand ntusl be

followed.

Further, the element of knowledge of illegalily in the impugned imports hsve been allegedwithout any basis and are imaginary. The violotion ofdepartmental instructions is hypolhelical since theDN does not appear to be aware of any such departmenlal inslruction which were found to be violatedand no such instruction has been referred in the notice. The allegation of illegality in previous imports isnothing but a hypothesis without ony credible evidence.

Further, the allegations lhat lhe goods were cleared is qlso baseless because all the goods werein custody of the Airport Authority/DN and none of the goods had left the Custonts Area. In fact theprocess of clearance is in progress at vorious stoges of clearance ond the goods were nol even examinedby the proper officer. It is reiterated the delailed reply indicating the progress of import clearance ix

.

respect of each oJ the consignments will be submitted after inspection of lhe documents os reque!:qdit!.' .

lhis lelter.

Page 47 of 145SCN: DRI/KZU/CF/INT-7,/ Pt. Sri Ram/4640 dtd 4.72.77

F.No. S33- 2312017 ADIN (A&A)I 1. ln ricr ol tlte tlin esuitl it i.\ rttlu!.\rul tlrut l spc.tit)n rl the originul cq.yc und tha rcliL'd upon

so trs lo enuhle lhe lblirce lo preytre his de/cnt'e repl.t' .utLl ulso to detiic the nunrcs of lh? personsv'ho:ie :ilutenrct s lrute been relietl upon in lhe cuse und tlta nunrs ol thc ollicers y'ho huye inlcstigdtedthe case.

12. 7'ha ntttitc / (,.\.,/-r'(.r /ti.! righl to tt-o.t.s-t:,,-rtrttirtL' tlrc rll/llc.rsas irr.lutlirg thc purtt'ltu tilnc.ssc.t turtlul.n hi.s ovn ui//z(,r.!s.r nith duc justilit'utiott uficr in.\pe('tion of tltc tktunent.s Lts ufbr?.\uid.

41.6. Shri Pranabananda Bala (Noticee No,6)

41.6.1. Shri Pranabananda Bala had submittedwherein, it has been stated, inter-alia, that:-

letter dated 05.0 3.2018,

"l hove received o Show-Couse Notice u/s 124 of the Customs Act, 1962 from Addl. Director, DRl, on dt.4.12.17 in which I wonted to submit my instont objection/ reply/ counter on the ollegotions roised therein Ibecome hondicopped on the following grounds:

i) Thdt from the doy one I om pointing out to the DRI investigating teom from 05.06.2017 ot obut15.30 to 16.00 hours when they took over the verificotion/ exominotion work from the Air Corgo Complex(lmpoft Shed), NSCBI Airport, Kolkoto before I could complete my work of exominotion thot my work ofexominotion wos incomplete, but I wos told to dssist them since they belong to the some deportment,which ldid, thus lwos olso instrumental in the soid detection olong with the DRI officers on 05.06.2017.

ii) Whereos on the summons issued by the soid DRI oflicers when they recorded incidentol focts as mystotements I wos not given ony opportunity to read the contents ond told to sign such recorded documentsstating thot they will give me o copy ond thot they hove recorded whot I told them. But neither I got onycopy ol the stotements on the spot, nor supplied oJterwords, which hos seriously prejudiced me in theinstont cose.

iv) Resultontly I hove to oskfor those documents/ evidences which ore proposed to be utilised agoinstme in the soid notice.

2)Thdt in the same of the soid SCN I hove received only Poge No. 1to 70 documents ond no otherdocuments enclosed therein which has deprived me in preparing my defense by verifying with the oriqinolsdnd contest my cose by getting reosonable opportunity guoronteed under the Constitution of lndid reodwith Section 124 and 153 of the Customs Act, 1962

I shall be groteul if oll the documents/ moteriols which are proposed to be utilised ogoinst me will be

supplied in its originol form ds primory evidence required under the low in o tronsporent monner ond oftergetting full documents/ moteriols in its primary shdpe, I mdy be given reosonobly odequote time/opportunity to effectively defend my cose before your good self for o proper and foir odjudicdtion.

Sir, being o responsible officer Executive Officer of lndion Customs, I want to contest this case to sofequordthe reputotion of the Depoftment, as well os my own interest Jor which I humbly request to kindly consider

my opplicotion in the interest of justice."

4L.7. Md, Nasir Uddin (Noticee No. 7)

4L,7.L. Md. Nasir Uddin had submitted letter dated 05.01.2018, wherehas been stated, inter-alia, that:-

?:

"{.+rSCNi DRI/ KzU /cF/INT-7,/ Pt. Sri Ram/4640 dtd 4.72.77 Pase 48 of i?b.l

iii) Further no enclosure whatsoever wos given or enclosed olong with the oforesoid notice eventhough it is stoted therein thot list of relied upon documents ond copies of relied upon documents ondcopies of relied upon documents hove been enclosed os the primory evidence. Further, no volume/ pogenos. of such enclosures ore shown onywhere in the sdid notice, which restricted me in giving instont reply.

F.No.533 2 3/2017 AD.iN (A&A)

:ritltitt -10 tlut.: lttttn tlr tlutt, t)f t ((ipt rtl th, :,ttna.

'l'he reliccl trltort docunrunls o'e utluntinrnll in ntdm e cn rillun goirrg thruugh the :;unle llte ledrnlAdyocttlc. y'lto hus baen cnguged in lltc mutlcr i.\ ol itl u posilion lo gitc u ?roper ond el/-cLlir( r( l' lo lhesoid Shov' ('truse Not ice.

h vieu' of this I on requeslin€! ),)our goodseLf lo grotl nr 60 days tinrc to give a proper und effectivereply. "

4L.7.2, Md. Nasir Uddin had further submitted letter dated 07.02.2018,wherein, it has been stated, inter-alia, that:-

"The relied upon docunenls ntentioned in lhe Shov, (ause Ndices are given in a CD. Sonte of the scurt

copies are nol opening and sonte are also illegible. I om n( in tt position to giy any proper und eflbclivereply to the intpugned tu,elve Shou,Cause Nolices $,ithoul the legible ctnd all the relied upon docurnenls.

I am humbly reque.\ting your goodself to supply ne lhe oulhenticttted copies of relied upon doc'uments foreach tu'elve of the Shou' Cause Notices to enabla me lo giNe a proper und e./fective reply.

I will be in o position to give reply to the intpugTed Shotl Cause Notices after I receite the copies of therelied upon docutnents. Hence, I hun$le prav before your goocl self to provide me lhe same for git'ing replvand not to procead u,ilh the Shole Couse Nolices v,ilhoul supplying me the relied upn docunenls"

41,7.3, Shri Shovendu Banerjee, Advocate and authorised representative of Md.Nasir Uddin vide reply dated 31,01.2O22 had submitted, inter-alia, that:

l. On behalf of nty client I om filing lhis reply in respect of the captioned show cause nolice v,ithoutprejudice to the rights and contentions of my clienl. Please do not construe thot by this reply my client is

submitling to your jurisdiclion.

2. My client is a citizen of India end working as a labour for 20 yeors ot airport

2a. At the very outsel my clienl denies each and every ollegation made sgoinsl him in the captionedshow cause notice. This instant reply is on interim reply without dealing the merits of case in delails till thequestion ofjurisdiclion of maintaindbility of the inslant shott cause nolice is decided my client reserves hisright to make detail submission.

2b. That my client has no "G" card as u,rongfully alleged.

2c. That my client used to enter the airport by using daily gate pass for the purpose of doing labour job

2d. Thot my client does nol know any importer or exporter or any other person call investigaled by theDN authorilies os alleged in the show cause notice.

2e. Thot my client went to DRI office for more lhan 10 limes to give statements. Thot my clienl wasplrysically and mentally tortured during laking such statement. Furlher, at times my client was offeredmoney for giving such stotement by the fficers of the eye. That my client has retracted all the stalementofter being released from jail.

2f. My client does not lcnow any fficer of cusloms yes my clienl is nol a customs broker.

3. The show cause notice is wilhoul jurisdiclion and nol maintainable:-

A. The Hon'bte Suprene Court of India vide Judgentent and Order dared 9th March, 2021 passed m -.' '

Cittil Appeal No. 1527 ;f 201( (14/s (lannon htdia Privale Limited vs- Comntissioner of Cuslonts ',,,. i' i,- '.2021 (37b) E.L.T. 3 (5.C.), inter alia, held that the proceedings initioted by the offcers o;f Direcrorite ofRevenue httelligence .for recotery of duty, by issuing Shov, Cattse Notice under Seclion 28(1) of the

SCN: DRI/ KzU /CF/INT-I'/ Pt. Sri Ram/464o dtd 4.72.77

('u.\totts .111. I961 urt inw id ritfutut dnr uutlruritrdcntortls.tc ul.\o sd utide.

F.No. 533 2312017 AD.JN (A&A)of lar nrd lithl<'to he.\ct usidL'tul tha orsuirtg

C-. Thal in viett o/ the oforesaid -judgentenl pu:ssed by- the Hon*ble ,Suprente ('ourt ql lntliu tt1red 9thMarch. 2021 in Cit'il Appeol No. 1827 of 2018 (Ws Cunnon htcliu Pri'ate Limited -r..s- Conmtissioner ofCuston6) lhe i:i.\ua regttrding the shov, cLntse nolice issued by the Additional Director General. Directordteof Reventre lntelligence is v'holly v,ithout jurisdiction as he i.\ ttot o propar fficer to issue such shtn, causenotice under Seuion 28 of lhe Customs Acl, 1962. Consequently, the oction laken on the hasis of suchpurported nolice is al.so bad in lav,. ThereJbre, the enlire proceeding fu the present case initiatetl by theAdditional Director General, Directorata of Rerenue lnlelligence by issuing the Shoy, Couse Notice underSection 28 of the ('ustoms AcL 1962 is inyalid and all subsequent steps ore 0lso consequently bad-

E. Further in initialion of proceeding if there was a lack of inherent jui isdiction, no demcmd con bemade tmder Section 28 ofthe Act- Consequently, penalty for such alleged violation is also not sustainabletmder Section I l4A or I l2(a) of the Act.

F. The Hon'ble Supreme Court relying on lhe judgment of (lAs C onnon India Privale Limited -vs-Comnissioner of Customs) (Supra) has dismissed the appeol of the reyenue on lhe self-sante issue in thefollowing judgement.

G. Il is stated herein that, lhe power to impose penally is available under Section 121 of the CustomsAct, 1962. Section 121 prescribes a procedure for imposing penolty, y,hich is consequenlial to initiation ofproceedings under Section 28 of the said Act. When initiation of proceeding itself is bad, no consequentialpower con be exercised based on an invalid proceeding, which is d nullity in the eye of law. When theproceeding itself is not nainlainable, imposition of perutlty which comes .tt the end of the proceedingsiniliated under Seclion 28 of the said Act and is purely consequential cannot be resorled to. The contentionrequires on outrighl rejection in the light of the filo aforesoid judgements of the Hon'ble Supreme Court ofIndia.

1. Point of naintoinability hos to be decided frrst:-

A. Otce the Tribunal has noted that the appeal had been challenged as not being maintainable, itshould dispose ofthe issue of maintainability frst before passing anyfurther order.-(2005) 10 SCC 274 Pora 2- Securilies & Exchange Board of India vs. Mdngolore Stock Exchange.

B. Where question arises as to maintainability thal ntsl be decided frst. Only if answered in lhealfirmative should lhe nterits be gone into.(i)Q999) 6 SCC 632 at Para 9- T,K Lathika vs. Seth Karsandos Jamnodas.(ii)A.LR 1958 S.C 687 at Para 4l/ P.698- K. Kamoraja Nadar vs. Kanju Thevor.

5. In viev, of the above I on beholf of nty clienl requesting you drop the show cause notice as the same isissued u'ilhotn jurisdiclion, however if your goodself wanls to proceed .further wilh the shrv, cau,se noticeunder reference then the point of nointoinability has to be decided first ond based on the outcoihe oJ tliiiorder regarding the maintainability of the shou, cause nolice I ha,e been inslrucled by nry client to trike

SCN: DRI/ KZU/CF/ INT-7,/PI. Sri Ram/4640 dtd 4.72.77

Rct'crrrrc. llirri.:tr.t ol Fittctrtc.a. (itxernnrcnt o/. lniiu (herainuliu rcfi,rral to us .Boutl ) i.y.sued onclnsh'nLliott lt'o. 01'l0l I -Cu:rtonts dutc.l lTth llurt'h. 2021 to Printiplc ,ldtlitionol l)iratrrtr Generol.Direclot' (ianerul o/ htclligence (DRlt. lYet Dclhi yhcrein the Bourd hu.s inter iu tlatitletl thut oll thefi'esh Shov Cuurc Noli(es under Se.'tion 28 ofthe Cu.stonts Acl. 1962 in respect d the tuses presenrh' beinginvesligoled b' DRI ore required to be is:rued bv.iurisdictionul Conurissionerates frorn u,here intlnrts hatetaken place.

D. That the judgement doted gth March, 2021 passed by the Hon'hle Suprenre Court of India is thelau' of lhe lcmd and the Ld. Adjudicaling Authority is also hottnd by the ralio laid dovtt in the saidJudgentent ctnd as such, in view of the uforesaid judgentent of the Hon^ble Supreme Court no furtheradjudication of the present proceeding is nruintainahle ond the show cause notice is liable to be set aside.

Page 50 of 145

41.8. Ms. Swati Vora @ Monika (Noticee No. 8)

No written submission has been received

41.9. Shri Arnab Sinha (Noticee No.9)

41.9.1. Shri Arnab Sinha had submitted letter datedhas been stated, inter-alia, that:-

19.02.2018, wherein, it

"1. Al lhe oulset, I v'ould like to stote lhat i am neither the importer oJ these 3 consignnrcnls nor I haveclaimed the ownership of the same. ThereJbre, it is irreleyant to call upon me to shovt cause u,hy lhe saidgoods should not be confscaled. I hate no interesl in the said goods. the Departmenl is at liberty todealv,ith the goods in ony nanner as deemed fit. Thus, I ant restricting my reply only towards proposal ofpenalty ogainst me.

2. ]tly role has been described at para 30.5 of the Show Cau.se Notice.

5. I had stated in nty slolemenl that Shri Sushil Kumar Singh (Proprietor of l4/s Sri Ram Traders) w,asknown lo me- When he approached me quite a long time back that he has an I EC and thus wanted toimpoft, I gove him the nante rf lr,t/s Zhenda Foreign Trade HK Lintited as supplier and the nante of LL/sShipoir Express(HK) Lld as carrier with a view to ensure lhe business interest of tly freight fotwardingcompany M/s NAF Logistics. l[/s Shipair Erpress(HK) Lld is nty counter part in Hong Kong in the bttsinessof freight forwarding. Since the goods supplied by l,I/s Zhenda Foreign Trade HK Limited are usuallycarried by lv4/s Shipair Express (HK) Lld, I ant supposed Io get the freight foru,arding commission for everysuch cotlsignment. That is my business inleresl and you nrust appreciote thot there is nothing v'rong in it.

6. The invesligation nisinterpreted my stalement ond distorted the fact. It is true that I and my ntother hadacquired 50 share.s each of l[/s Zhenda ForeigV Trode HK Limited earlier as one of the Directors and co-Director respectively. Bul our relotionship with A[/s Zhenda Foreign Trade HK Limited terminated witheffect from 01.03.2017 since we have tansferred our entire shares on 01.03.2017 to Mr. TSO Siu Ho whichi.; evidnt front the company relunl in NARI Form dated 12.9.2017. [Copy of company return in NAR]Form dated 12.9.2017 is annexed.l

7. The impugned 3(three) consignments were shipped in June, 2017 by A4/s Zhenda Foreign Trade HKLimited whereos our relalionship with that company terminoted reith effect from 01.03.2017. Therefore, u,ecannol be held responsible for any ntisdeeds of the company in connection with these three corlsignnrcntsand cannot be liable lo any penal action.

8. I om a Direclor of ll/s NAF Logistics Pvt Ltd engaged in freight forwarding business- We have issueddelivery orders against Airway bill No. 16083695681 and 17651035881 afier realization of ourfees/commission on the basis of House Airway bills issued by l[ts Shipair Express(HK1 Ltd. lle have notissued any delivery orderfor the third consignmenl. ,,

9. Being a freight forwarder, u,e haye no scope to see/examine the goods of ony consiggunenl booked by us.

It is universally accepted proctice that the Jreight fory,arders/ Shippitg c'ontponies accept lhe description of

SCN: DRI/KZU/CF/INT-75/PI. Sri Ram/4640 dtd 4.72.77

3. Firstly, I would like lo stote thot lhe purporled slalements of mine as menlioned and relied upon in theShow Cause Notice were actualb) obtoined by the DN oficers by threat and coercion. The said tfficerscompelled nrc to give lhe said stotemenls us dictated by them with the wtderslanding that they would notimplicate me in the subject proceedings. They have dictated the said statemenls in order b gel support ofrhe fact rf illegal importations os discussed in the Show Cause Nolice. I do hereby retract the satulslatements since those were obtained by threat, coercion andfalse ossutonce.

1. I have never admilted lhal I hove the knowledge that the goods ogoinst the three impugned consignmentswere facilitated by me os supplier and I have active role in under invoicing/misdeclaring the goods.

Page 51 of 145

F.No. S33. 23l2C17 AD,\ (A&A)t/tt grt,rl: tt\ th\lttt il ltt' tlt: tltiltltLi . ,ut./ ,t,,,rrlintlt i:,tr, rlt, llill ,tl l..rttitt,: llottrt' .lintLt liillx

10..\lv ollitt ,rs ttll Lrr tttt ra:i,l<,rrtt, trt'rr, .tcrtrt.lttrl hy l)lll rn l-j.ll).10!-. hut rtrt irtt.t ttttrttLttitt14

intrirtritttlittg drrunrcnt.: c'ottld bt, t'r:L,tlvrcrl fnnt nc.

I l.It is uthnitted ut puro 20.1 of the Sho:rl('ttuse Notir.a thut a conspiruc): ttas hutchetl bt,,\lri MttturMehta in conniYttre v'ilh Lt series of nliddletnun. ('uslonl:i Broker und Culom olf L.iols posle(l ut Air CttrgoContplex. Nuntes oJ t'urious persons trere indic'aletl. Bul nailher nt none nor nry (,otnpamt',\ nutne y)o5indicated. This indicates thot lhe i vesligolion r,t'us sutisJietl tfurt I ',i,,ct:j ttot inv ted in the rocket.Unfbrtunutely. in spite of thdt, I u,as nnde o Notic?e. This intlicutes the bias ol the intestigotiotl.

12. It is clear.fiun thefocl narroled in the entire Shou'C'ouse Notice lhot the inwstigatiott yas deterntinetllo inrylicdle nrc in lhesa proceedings fi,hook or crook. Ther, v,ere definitely hto,ing doubt as Io yhetherpenally cttn be intposed o,? nrc ut all under any parlicultu".\ecliotl and that i,s ttro\. penuhy has beenproposed under sedion 112(a). ll2(b1 und 111AA sitrtullaneously u'ith on ideo thot I m \) not escapepenahy by any nrcans. Invesligalion failed lo appreciute lhat penolh- under different sections is intposablefor dffirent offences and oll the section.s con not be intoked for the sanre offence.

11. The Shou, Cause Notice also proposes penally under section ll2(b). You ntay appreciate thal Ihove never handled the impupgted goods physically and I had no knowledge about the misdeclaratktn of thegoods. It is dpparenl from the language of section 112A) hdt section 112(b) must fulfll two essentialcriterio i.e. (l) the person must haNe ocquired possession of or is in any woy concerned in carrying,removing, deposilin& harbouring, keeping, concealing, selling or purchasing or dealing in ony olhermanner and (2) he knows or has reason to believe that the goods are liable to confiscalion under section111. Both the criteria are absenl in the Shov, Cause Notice in implicoting me. . Therefore, penalty under

section I l2(b) cannol be imposed on me. I would like to rely upon lhe following cqse lows in this regard.

a.D. Anikendu Choutlhury--- 2005(182) ELT 206(Tri.)b.Gopal K Sopru ----- 2007(213) ELT 689(Tri.)c.Sandeep Shah ---- 2007(213) ELT 269(Tri.)tl.Go*ulTextiles ----2007(218)ELT299(Tri.)

l5.The Show Cause Nolice olso proposes penalty under section lllAA. The investigation may not beoware aboul the correcl applicability oflhis provision. This seclion is applicable only in lhe cases of exportu'hen lhere is no exislence of goods but lhe documenls are filed fraudulently lo enjoy sorne benefit, sinceolher protisions for inrposing penalty can nol be invoked in such case. You moy be sware that sectiottI11A.4 was inserled in lhe Cusloms Act. 1962 v,ith effect from 13.07.2006 ofter enactment of the Finonae,

Bill, 2006. In this contexl, we like to rely upon the approval dated 12 Decentber, 2005 of rhe proposedFinonce Bill, 2006 occorded by lhe Chairman of the Standing Cottuttittee on Firutnce. Para 63 of the saidapprotal clearly erpresses thot the new seclion I llAA was proposed lo provide penalty in the cases whbie

SCN: DRI/KZU /CF/INT-7,/ Pt. Sri Ram/464o dtd 4.72.77 Page 52 of 145

I 3. The Shoy, Cause Notice proposes penally under section I 12(o).(i)You nruy appreciole lhat I oru nol the imporler and I have nol lransacled ony bttshtess with Customsdepartmenl in conneclion with the impugyed 3 consignntents. Therefore, there could not be ary' 6gg{tsimfor rne to do any act or to omit lo do ony act which acl or omission would render the goods liable toconfiscotion. Consequen y, penally cannot be imposed on nte on thot account.(ii)Moreover, during investigation my premises both residential and ffice were searched by theinvestigation, but nolhing incriminoting could be recovered. Several persons v'ere inlerrogoted, but nonehas deposed lhal I v,as also o port in lhe conspiracy. Mobile call data be^reen various persons purportedlo have been involved in the conspiracy as indicated al para 17.2 and 17.1 of the Show Cause Notice doesnot indicate even a single call froru me to any of those persons or any call from any of those persons to me.The invesligalion also failed to rely upon any docu tenldry evidence even as presumplive evidenceindicaling any abelment on my part. Therefore, penaky under section ) 12(a) on accomt ofabetment is alsonot sustainable.

F.No. 533 2312017 ADiN (A&A)

\ t t l\r ittltt'.\, tl ,,1 ltt' tut,lt,r tltt\ \, t tit)tt

16. In vie]r uhotc. rttt ltenullt is inrytsublc on nrc ontl .tott ora. therefire. requcsle(l lo (h"q) thc procaedingsLtguirtsl nrc und ohlige ntc.

lr llttwaver. il lhe ruljudicalhry uuthorit.t is not suisfietl vith mt suhmis.sion us ulxl.e, I *ish to he heullitt persott untl lhu-s retluesl lo gronl rc u personul heuring. During pcrxtnul hcuring. I y.ould like to cross-eruntine Shri Snhil Kutnar Singh. Shri Shahtmsho Mallik ulius Bcttlshqh utd Mr.Nusi. (idttin y,ho hatlntentioned nty nurne in their respactire ,\l0tenrcr\t.\. "

4L.LO, Shri Aloke chosh (Noticee No. 1O)

41,10.1. Shri Shovendu Banerjee, Advocate and authorised representative of ShriAloke Ghosh vide reply dated 31.01.2022 had submitted, inter-alia, that:

l. Ot behalf of ny client I am filing this reply itt respect of the caplioned Show Cause Notice wilhoutprejudice lo lhe rights and conlenlions oJ my client. Please do nol construe thol by this reply nty client issubmitting to your jurisdiction.

2. My client is a citizen of India end working as a labourfor 20 years ot airporl.

2a. At the very oulset my client denies each and et ery allegation made against him in the caplionedShow Cause Notice. This instonl reply is an interim reply without dealing the nerits of case in details tillthe question of jurisdiction of mainlainability of the instant Show Couse Notice is decided my clientreserves his righl to make detail suhnrission.

2b. That my client has no "G" card of Customs Broker, A4/s Sadguru Forwarders Pvt. Ltd. aswrongfully alleged.

2c. That my clienl used to enter the airport by using daily gate pass for the purpose of doing labour job.

2d. That my client does not know any intporter or exporter or any other person call investigated by theDN outhorities as alleged in the Show Cause Notice.

2e. That my client went to DRI ffice for more lhan 10 tintes to give stotements. That my clienl wasphysicctlly ond ntentally tortured during taking such stotement. Further, at times nty client wos olferedmoney for giving such slatement by the fficers of the eye. That my client has retracted all lhe statementafter being released fron joil.

2f. My client does not know any oficer ofcustoms yes my client is not o custonts broker.

3. The Show Couse Notice is without iurisdiction tnd not m intainoble

A. The Hon'ble Supreme Court of India vide Judgement ond Order doted th March, 2021 passed inCivil Appeal No. 1827 of 2018 (l[/s Cannon India Priyate Limited -ys- Commissioner of Custonts) 2021(376) E.L.T. 3 (5.C.), inter alia, held that the proceedings initiated by the fficers of Directorate of RevenueIntelligence for recovery of duty, by issuing Show Cause Nolice under Section 28(4.1 of the Customs AcL1962 qre invalid without any aulhority of law and liable to be set qside ond the ensuing demands qre qlso

set aside.

B. Pursuanl to the said Judgement, the Central Board of Indirect Tmes and Custonts, Deportment ofRevenue, Mirtistry of Finance, Government of India (hereitrufter referred to as 'Bou'd'1 issued oneInstruction No. 01/2021-Custonts dated lTth March, 2021 lo Principle Additional Director General,Director General of Inlelligence (DRI), New Delhi w'herein tlte Board has inler alia decided lhal oll lhe

fresh Shou, Cause Nolices under Section 28 of lhe Customs AcL 1962 in respect of the cases presenllyliryg --investigated by DRI are required to be issued by jurisdiclional Comntissionerates from where importi hauetaken place. ;'

,i;- ,:l

SCN: DRI/ KzU /CF/INT-75/ Pt. Sri Ram/464O dtd 4.72.77 Page 53 of 145

F.No. S33 2312017 AD]N {A&A)(. llrtrt irt tittt rl tha tlittt'.sttitl jrrLlgt'rttt:rtt ltus.tatl ht tltt, llon ltla,Srrltrt,rrtt,( ttrrrt o/ ln<litr dutccl 9th'\firch. 2l)21 in ('it'il -'l1tpcul ,\ir. /,\l- tl l0lli t.lt,s (iotttotr lndit Priv <t LitrritLtl -rs- (orrtrrti.:sioner ofl usronts) rltr: i.s.strc ragunling tlr ,\l.rrr ('ttusr ,\:ori<c issucd h) thc ,.ldditioutrl Dikator (;cncrul,

Shott ('uusa Notice untler '\ectiorr )ll ol thc ('ustotrrs -4c1. 196). ('on.sequcntlt, lhc uc.tirtrt tukcn on lhe busiso/.tuch purltorted rutlice is olso beul in lat'. Thcref'orc. the entirc proceeding fu the prcso?t (.u.\e initiuted hvthe,4dditi<tnul Dircctor (ieneral. DireL'tordle of Retenue lntclligcnce by, issuing tha,Shoy,('ause Noliceuder Secliut 2ll oflhe (-ustonts Act, 1962 is invalid and all ,ruhsequent steps are ulso consequentlv bod.

D. I'hut thc.iudgentenl duled 9th l\/tu'ch.2021 pu:;sed b.t'the Hon hle Supre c Courl o/ Indiu is thelot ol the land arul lhe Ld Adjudic'ulitg Authorih' is ul.v htnud b.t, lhe rutict lttid tltntn in the saitlJuclgentent und us such. in vietr rf the uloresuicl jntlgentenl ol. lhe Hon'ble Suprcne Cour.t ttu firrlherodjudicolion o/ lhe presenl proceedittg is nruintttinable und lha Shov, Couse Nolice is littble lo be sat oside.

E. Fttrlher in inilialion of proceeding if thare u,as a luck of inherent jurisdiction. no denrund con bemode under Seclion 28 of the Acl. Consequently, penalty for such olleged violation is (1lso nol sustainableunder Section 1 llA or I l2(o) of the Act.

F. The Hon hle Supreme Court relying on lhe judgment of (14/s Cannon India Private Lirnited -us-Commissioner oJ Cusloms) (Supro) has disnissed the appeal of the revenue on the self-same issue in thefollowing judgenent.

Point of Maintainobility hos to be decidecl first:-

A- Once the Tribunal has noted thot the appeal had been challenged as not being naintainable. it shoulddispose ofthe issue of maintainability./irst before passing anyfurlher order.-(2005) 10 SSC 274 Para 2- Securities & Exchange Boord of India vs. Mangolore Stock Exchonge

Where question srises as to maintainobility that must be decided frst. Only if answered in lhe afrrmotiveshould the merits be gone into-

41.11. Shri Saja! Das (Noticee No. 11)

41.11.1.that:

1- The above SCN relares rc Sushil Kumr.r Singh, Proprielor Sri Rant Traders in respecl af Bilk ofEntry No. 9918788 and 9918804 both dated 03.06.2017 and Airway Bill No. 21715513104 ilated05.06.2017 comprising ntobile phone and ntobile accessories, wrisl v,atches and eleclronic goods. I was/dqt. ',,

SCN: DRI/ KzU /CF/INT-7,/ Pt. Sri Ram/464O dtd 4.72.77

G. L is slaled herein that, the pov,er lo impose penalty is ayailable under Section 121 of the CustomsAcL 1962. Section 124 prescribes a procedure for imposing penalty, v,hich is consequentiol lo initiotion ofproceedings under Seclion 28 of the said Act. When initiation of proceeding itself is bad, no consequentialpower cot be exercised based on an intalid proceeding, which is a nullity in the eye of lov'. ll/hen theproceeding itself is not maintainable, imposition of penalty which contes at the end of the proceedingsinitiated under Section 28 of the said Act and is purely consequential connot be resorted to. The contentionrequires ctn oulright rejeclion ifi the light ofthe ,o aforesaid judgentents of the Hon'ble Supreme Court ofIndia.

(i) (1999) 6 SCC 632 at Paru 9- T.K Lathika vs. Seth Kusandos Juurudas.(i, A.I.R 1958 S.C 687 at Para 41/ P.698- K. Kamoroja Nadr vs. Kunju Thevar.

5- ln view oJ the above I on behalf of my client requesting you drop the Show Cause Nolice as thesame is issued withoul jurisdiction, howet,er ifyour good selfwanls to proceed further v'ith the Show CauseNotice under reference then the point of maintainobilily has to be decided fir.st and based on the oulcome ofthe order regarding the nruintainobility of the Show Cause Notice I have been instructed by my clienl lotoke such legal steps as might be deemed necessary in lhe interesl ofjuslice and fair ploy without furtherreference lo you, lhe cost and consequence whereofyou shall be severally and jointly responsible. "

Shri Sajal Das vide reply dated 05.02.2018 had submitted, inter-alia,

F.No.533- 2312017 AD]N {A&A)

)'cl I hute heetr inrytleutlei us Nctlicct rut. ll irr th! i :t.tnt.!(',V rarrl l. ulong rith othcr ^it)tiL.e?.\.

(tnl

Custon House. Kolkula us lo y'hr -

i) thc suil 6 piate.s of ,rri.\t \t ulchc.\ ntu.ked u: EIffORIO ARll,lANt. ha.irg :;ci:urc tdue tlRs.1,12,3t1- togcther virh ll'risr ll'urthcs of hrund.s ULIRITERRI'. ('.4RRERA. ('ARTIER. GUCCt.LONGINES. MI(-HAEL KoRg MONT BI,ANC. OI,TEGA. P,17'EK PHILLIPE. PIAGET, RADO. ROLE,.Y.TISSOT having sei:ure vulue of Rt.3.l5,l3.9llt/- and the High Value hrutdetl mohilc phones. BrunjetlEarphones. Branded heudphones o hranded nutbile covers erc. Together t'olued at R\.1.7 3,89, t 39/-inported under cover of Bill oJ Entn, No. 9918788 duted 03.06.2017 artd 2952 pairs oJ NIKE shoes hmingseizure wtlua of Rs. 1,26,32.100/- antl 1008 pairs of ADIDAS ,shoes having seizure t,alue oJ k.69,12,000/-imported under cover of Bill of Entry No. 9918801 dared 03.06.2017 ond the Motherboards. Speokers,logic cards and other accessories for bruntled televisions irnported under cover of the AirWay Bill No.21715513101 doted 05.06.2017 hating a totol seinre of Rs.6,55,957/- should not be confscated underSections 1 1 1(d1, 111(f), 111(r, lll(l) & I l1(m) and Section 119 of the Custonts Act, t962 readwirh Rule 6of IPR Rules, 2007 on the grounds as discussed above;

i, Ottt of the said seized goods, 6 pieces rf u'rit y,utches ntarked as EMPORIO ARLL4NI, hat,ingseizure wtlue of Rr1,12,371/- and 2952 pairs oJ NIKE shoes having seizura yalue of Rs. 1,26,32,100/- and1008 pairs of ADIDAS shoes hm,ing seizure value rf R.s.69,12,000/- should not be clestrrryed in terns ofRule 1 1 (1) ol the IPR Rules, 2007 on the grounds as discussed aboye.

2. My alleged role is summarized in paragraph 30.7 of the SCN which reads as follows

'30.7... ... ... ... ... ..

3. The aforesaid role attributed to me is totally misplaced and it is bssed on assumption sndpresumplion only.

1. I hctve been advised to deal with only those allegations which are directed againsl nte, save andexcept what ore specifically admitled herein, all allegalions contrary therelo and/or inconsislent there withme denied and disputed as ifthe sante ore set out herein ond denied and disputed in seriatim. .. 1 ,."1'.:. '.5. As regards the proposal of confscation nntle in sub-paraEyaphs a,c, and d paragraph tS i7 *e..

SCNi DRI/KzU/CF/INT-75 / Pt. Sri Ram/4640 dtd 4.72.77 Page 55 of 145

ii, Penalty under Section 112(tt), Section ll2(b) and Section ll4AA of the Customs'Ac1 1962 shouldnot be imposed on each ofthem on the grontds as discussed above;"

Shri Sajol Das w'cts also instrumental in facilitating the clearance of such goods in as much as he at theinstance of Naweet Kumar, seorched for a person who could handle the job of clearance of themisdeclared consignments and in the process localed Nasir Uddin. He introduced Nasir Uddin with anumber of such brokers/itnporlers who intended to bring in the misdeclared goods in connivance with theDC Navneet Kumar. He also alkmed his olfice machinery to be used by Shir Nasir Uddin ro receive themails from the importer ond especially from Late Shri Muyur Mehta and Ms. Swati Vora @ Moniku Vora.Wherefrom, it was cryslal clear that the goods were grossly nrisdcclsred and also facilitated the clearonceof such goods through Customs. ln his statement recorded under Section 108 of lhe Customs Act, 1962, SriSajal Das denied of hatting arry knowledge of the sntuggling, however, front the bank statement of PasificEnterprises it wos found that on 20.05.2017, an amount of Rs-5,00,000/- wos paid by Pasific Enterprises toNirnala Bala Trading, the frm related to one Shri Sajal Das which can only proves his nexus. Sri SajalDas being a mtm in the business of Customs Broker, would know quite y,ell that he was going tofacililate oconspirocy to bring in misdeclared/contraband goods which nre liable to confiscation under the CustomsAcL 1962 and thereby he rendered himself liahle for penalty under Customs Act, 1962. It farther oppearsthal Shri Sajal Das lotowingly and intentionally used or caused lo be made fake/forge import docunrcntswhich do not correspond to the nnterial imponed by Surya International. Therefore, it appears that saidsaid Shri Sajal Das has rendered hintself liable for penal action under Section 112(o), Section 112(b) andSection I11AA of the Customs Act, l962for his act of omission and conrmission. "

F.No.533 2312017 ADJN {A&A)'l( \'ttrtrl ltnrtos,tl .f rt- deslntt ittrt mkl( i ltdntgrtqth l5tc1oltha grtrxl.s irr tcrnr.s ol Rula Il(l)(l.llk'tI,RRulcs )l)0-. I *t.t lhul I huve no ohjcLtion us I tumr lrutt' urtt ohjt'tliott uguin:;t totfix.uliort utnl or

nor I un irt tutt ttc:l conneclcd villt thc nrhjcct grxxls. I neru"hud nor do I huye un rigltt or title orinlcrc.\l of un.t nulm'e y,hotsoevr itt thc subjcL-t gootls.

scleclcd fod:; und e.urggcruting lhirrys vithout recogrtition to .tstronomictll lelels ontl u perL.cption husbeen creuted hl spetulalit)ns, itndginaliotts, ussttntplion.s untl prcsunplions.

7. Sec'tion 112(o) oJ the Act hos been v'ro gly- ittvokecl ugctinst me os neither I did nor dicl I omil lo t]ootl\, oct rtthicll rettdered the subject goods liable lo cottiisc{ttiot? nor did I abet the doing or ontission of arysttch ucl. Furthernnre, the SCN does not reveal ant, act of abelnrcnl on nty parl save and excepl insitluotion.

8. Another Secrion 112(b) of the Acr has been wrongly invoked ogain:il nrc in qs nruch as neither Iacquired possession nor wos I in any u'ay concerned in carrying / removing / depositing / harbouring /keeping / concealing / selling or purchasing or in any manner dealing wilh the subject goods.

9. Seclion I 11AA has also been u'rongly invoked against me os neither there u'as any occosion for nteto siqf any decloration or slatemenl or docunenl rutr did I do so. There is no mdteriol to supportinvocolion of the said Section.

11. The said seclions hdve been invoked without any objective standord and nerely on the basis ofsuspicion ond/or ossumptions and/or presumptions.

12. My impleadmcnt in the instont SCN is erroneous on the facts and in lov,. I did not perforn anywork in relotion to importation of the subject consignment. In fact the period between second hau of lheyear 2016 andfrst half of the year 2017 was full of tragedies for our family. First nry uncle Utpal Das died;lhereafter my parenls died one afler tlie olher. All of tlicm had prolonged illness and prolongedhospitalization. I spent nosl of my valuoble time visiting doctors, rendering care lo lhe aforesaid persons,attending hospitals and performing deoth related religious rituals- I crave leave lo subrnit relevsnt medicalpapers and death certificales in this regard at lhe time of hearing, if necessary. As a consequence I had todecline almosl every new jobs including but linited to 1.4/s Lotus Impex (India) and l,[/s Antbey Teleconrand advised the clients to engage sonteone else. The SCN wrongly twisted thisfoct in an ottempt to proye illmotive on our parl.

13. I om not in any way connected with Lrl/s Nirnnla Bala Trading Company. So far I am aware saidfirm is sole proprietorship concern ofChandon Das who deals in DEPB and other scrips- I did nol receiveany payment front ll[/s Nirmala Bala Trading Company or its sole proprietor Chandan Das nor I paid anyone on behalf of the said firm. I have no pou'er or authorily to operate bank accomrts of Ws Nirmala BalaTrading Co. or deal with its tronsactions and accounts.

11. I qm q Custom Broker (in short "CB"). CBs ctre licensed to trcmsqct customs business and each ofthem is regulaled and empowered by the Customs Acl I962 and rules and regulalions franted thereunder toossist importers ond exporlers in neeting legal requiremenls governing imporl's and exporls.

15. CBs furlher are required to comply t'ilh enlry procedures, admissibility requirements,clas.;ifications, valuolion and lhe rate of duty and applicable taxes and charges for imporled nterchandise.The said frms submit necessary information and appropriate po)rments to the Custont House on behalf oftheir respeclive clients and charge them fee for such service.

16. CBs also act on behalf of the clients - irnporter ond axporter - to organize the safe, eficient and.cost eflective lran,tportotion of goods.

SCN: DRI/KZU /CF/INT-75/ Pt. Sri Ram/464O dtd 4.72.77 Page 56 of 145 c".*'.11,

10. I humbly submit that Sections ll2(a), 112(b) and I11,4,4 of the Act have been invokedmechanically and without opplication of mind. The said Sections have no application against me in the

facls and circumstances of the case.

F.No. S33 2312017 ADIN (A&A)l-. ln tntul torrrsc of hu.;irtc.t.r. ( B\ tttl thcir altltlttat,.t l,a.'a lo intt'rut.t tith crutanrctl tu.ttgrrt

otlrcr iDrytotlcr.\ nunrcl in tfu S('l\: tud their ugants unl I vu: no rhara ir the pi(1to'c. Tlrcrc ycrc dirattc'otltttttttti&ttions, deuling.s od lrqnruLtion.\ unotryast lhcm unl tlrc suntc i.s rereuled .fi<tm ^S( N irsef. ,1.1r.

ttqnk' ltu.\ heen drugged in lhe S('N hy.selcctire reutling orcl out (t Lonte.\l reluling of.puqxtrted stote rcntspnrprfladlv nurle t tdar.\eclion 108 oJ'the Acl. It nruy hc stute(l lhtrl Nusir Uddin is also u logi,\tic supplier.Irensport broker ud u.free luncer. I hatl to contoct hin.fitr a'r'anging vehicles pre utd post tenure of DCNa'neat Kunar in Air ('argo Contltler Solkata. However"only seleclfue call details hus been highlighted inthe S(;N. l/ call delails in it:i e lirely dre produ{'ed the so rc will reyeol the abote.fbet. As regards the culldetails v'ith DC Nuvneet Kunur is concerned il v,as bare mitintum considering lhe yolunte oJ.job tork Ihandled cts a CB. These call details hme been mis-read to attribute ill notire on nry part.

19. The purported stulements of Alok Ghosh and Sukhendu Moity os regatds nte haye no evidentiaryttalue. ln any evenl lhose ore untrue, unreliable and connot be relied upon wilhout being tested on the touchslone of cross exantinaliotl.

20. As regords |he stolemenl of Muyur Mehta is concened il is utltrue so fur it reloles lo nrc. SCNrevectls thol Mayur Mehta u,as adnittedly knov,rr to DC Nowtect Kunmr und DC Nnnect Kunnr y,as

known to Nasir Uddin who did the clearing job on behal/ of CB Sadguru Forwarders Pvt. Ltd. MayurMchata v'as himself o CB. Mayur Mehato had opened his oy,n ofrce in Kdkata ond has posted his ownnten to toke delivei. SCN also reveals thal Moniko lhe entployee of Mayur Mehta was in regular touch withDC Navneet Kuntar for clearonce of import consignments. The import documenls y'ere senl eitlier to DCNsyneet Kumar or Nasir Uddin. The said DC was bribed by Mayur Mehta, os appears from SCN. Hence itis ridiculous to allege that I played any role or facililaled import os alleged. In any event neither there t,asany need of my involwmenl nor was I involved in clearance of any goods other than those where I u'o^s

engaged as CB. Il is vehenrcntly denied there wos any nexus wilh Courlesy neelfug held with Moyur Mehtaand the alleged offence. I did not know about lhe aDeged illicit business and wrongdoings of Mayur Mehtain Kolkato. The alleged statentent of Mayur Meheta, so far it relotes to me cannot be relied upon withouthis c ro s s - e x am in at i on.

21. As regards mailing of documents is concerned, it is known foct that all the CBs do not have officesel up in the Air Corgo Complex. CBs extend co-operalion in sharing ffice opparatus, machinery andequipments- The docuntents mailed in my compuler were meant.for Nasir Uddin. Without having anyreason to suspect atrythingfoul, I allowed user of nty computer wilhoul ony considerulion and purely oul ofCourtesy- In any evenl document found in my computer are the sante documenl which were fled in theDepartntent as alleged investigalion reveals.

22. The alleged statentent oJShri P Bala is ridiculous, unrelioble and wrlrue sofor it relates lo me. Il ison record lhal instructions for exoffiination of the goods were passed directly by DC. Even packages to be

examined were pointed out by him. Shri Bala being a very experienced officer wasfully aware thol I on nolCB of lhe importer herein and neither was I authorized to atlend exomination of goods in respect of Bill ofEntryfiled by other CB nor I or anybocly on my behalf atlended such examinalion.

23. There is nothing in SCN or relied upon documents that I derived or intended to derive any beneft

from the alleged imports. There is no reason or justification for me to do anythinq illegal. I have beut

falsely implicated in the instanl case.

24. Further and in any evenl I was nol in the knov, of anything being done like smuggling. Hqd I htownany such thing I would have been the frst person to bring the some lo the notice of the opproprialeauthoritv.

25. It is incorrect to allege that I v,as instruntenlal in facilitating clearqnce of the mis-declared S"o4;,.or lhot I made a search for o person Qlasir) u,ho could handle the job of clearance of misdeclqrdd-'

consignments. It is incorricr thai I introduced Nasir with a nmnbar of brokers/intporters v,ho inten'ded"t6''

SCN: DRI/ KzU /CF/INT-7, / Pt. Sri Ram/4640 dtd 4.72.77 Page 57 of 145

{?i *

F.No. 533 2312017 ADjN (A&A)hrit14 irt tlt,' rrtitLlt't lurL'r/ lortr/: itt crutuit,lrtt tritlt tltt l)(. lt i.s ittt.tr.rt,tt trt trllcgt, rlttrt I tt!lr,'rt,tl

tut.t lLrke /i)r{d ilryot't (l().'ttlit,ttI.\.

26. .1.; regutls pu.r'ntcnt o/ Rs.5lukhs ullagctllt puii hy t,u.silic Entery)ri.\( on 10.05.2017 to NirnuluBulu Trurling is conceurcd. I enpfuttic'ullt stutc lhut liirnrulu Bulu Trutling Co. is not d.fir t/conc.er ofntine. So lur I knov, it deul:; tt'ilh DEPB uutl ulliad sL'rip.s. I ha'e no conLcnt y,ith lhe husiness o/ Ni"mulBalu Trttding ('o. I trrrt llol (tvqrc us to v'l:t, und .lbr t'hich ptq)ose lhe ulleS4ed unutunt u as poitl. I anttotally in durk in this regtu"d.

27. ,ls rcgurds Nasir. lhe nutlerials ott rcc:ord nuke:; it t'itt,stttl cleur tfut he vos picketl up ht DCNa'een Kunrur: inslrucled lo urrunge u CB und G Cartl holder, -ly'a.srr rla,s introdu<ed to vtrious irttporter.sb1' .suid DC: Poynrcnl drrongenpnts y'ere nude betu'een the soid D(.', imporler.\ and/or theirnru.tters/kingpins ond I v,os ttov'here in lhe picllre. Emuils v,are erclrunged/ shared bett,een Nosir und lhes.tid DC os Y'ell us lhose rf the inrporters and/ or musterminds/ kingpins. Elen lhe enruil lD of Nasir wusshared by the DC. Nothing was poid to nrc nor the moterials on record shot' un)) pq,-tnenl to nrc. Mr) no pho's been unnecessorilt dragged in lhe nrulter. I u,os nol uv'are and I cotld not have been o\tare thalmisdecla"ed goods v,ere being cleared by the Customs Olficers in connivance v,ith the CB, their nten andimporters/ their mttsters/ 1E(.' holders. As such, the invocalion of Section ll2(a) or Section 112(b) orSeclion I 11A4 ogoinsl me i.s uncalled for, utwarranled and not sustoindble either on Jacts or in law'.

28. I had/ have neilher ony connection nor the molerials on records show ony connection with imporlingfirnts Sri Ranr Traders or its Proprietor Sushil Kumar Singh or ony other connected person. The entireShow Cause Notice as against nte has no nreril.

29. In the premises aforesaid, the Hon'ble Comntissioner may be pleased to drop the SCN against me.However, if the Hon'ble Comnrissioner decides to proceed further, pleose granl Personal Hearing. Iresera)e lhe righl to osk for cross examination oJ persons whose stalements are inlended to be used ogoinslme and I also reserve my right to odd, omend and supplentenl my reply."

4L.LL.2. Further, Shri V.N Dwivedi, Advocate and authorised legalrepresentative of Shri Sajal Das vide reply dated 09.03.2022 had submitted,inter-alia, th at:

l.In continuation with reply dated 05.02.2018 of Sajal Das, oral subntission in course of virtual personalhearing held on 07.03.2022 and leave granted by the Ld. Commissioner, the noticee no. I I (Sajal Das) isfiling this written submission.

2.The answering noticee hos been advised to deal with only those allegations which are directed againsthim and he refrains front dealing with allegations/charges made ogoitlst co-noticees and others. Theansu'ering noticee denies and disputes each and every allegolions/charges leveled agafust him.

3.The allegations and the charges againsl the nolicee no- I I are summarized in paragraph 30-7 at page 66of the SCN, which, for the sake of ready reference, is set out herein below:

" 30.7

Shri Sajal Das wqs also instruntentctl in focilitating the clectrance of such goods in qs much qs he qt theinstonce of Novneet Kunrur searched for a person who could handle the job ofclearance ofthe misdeclaredconsipfmenls and in the process located Nasir Uddin He introduced Nasir Uddin with a nuntber of suchbrokers/importers u'ho intended to bring in the misdeclared goods in connivance v,ilh lhe DC NnneelKumar. He also ollowed his ffice machinery to be used by Shir Nasir Uddin to receiie the ntails from theimporter and especiolly from Late Shri Mayur Mehta and Ms. Swuti Vora @ Monika Vora wherefrom, itwas cryslal clear that the goods were grossly ntisdeclarad and also facilitated the clearance of such goodsthrough Customs. In his slatemenl recorded under Seclion 108 of the Custont.\ Act, 1962, Sri SciaLDqi,::;.denied of hatting any knowledge ofthe smugqling, however, front the bank statement of Posifc Enterpi-lses .

it u,os found that on 20.05.2017, an omount of Rs.5,00,000/- u,as poid by Pasrfc Enterprises to Nirn lo

SCN: DRI/ KZU/CF/INT-7'/Pt. Sri Ram/464O dtd 4.72.77 Page 58 of 145

F.No. S33- 2312017 ADJN (A&A)

Suiul l)us knrluingly o inlenliurllr usa(l u'(..ttt.\ul to he nric./i*e/ftrga intlxtrt doctnrnl.s trhith tl1

Dus hus rendered hintself liuble /br penul aclion undcr Section I121u1. Section I t2(h) ancl Sectiott lllAloflhe Cuslonts Act. l962for his uct of omission uttl tomnrission. '

1. Al lhe retl oulsel. lhe utl\tering ruticee .ttut?s und .suhmits thot tha ttllegutiorrs lubeletl uguint hinture tult-tk!, det'oid of nrulerir s otd lhe .s.tDte a'e deniecl unl disltttted us rf tho.se ore set out herein uttldenied ond dispttted in seriutint 'l'he ullegution,s litll respaLl to ll[/s Pa,sific' Enlerprises und trlis Srut'Ltlntentdlionol dre nol onlr ruttrue but the sante ure ul.so iffelcyurtt for the udjudicution ol the instunt ,\CN.The ctlleged poyment hl M/s Pasifc Entarprise,s to M/s Ninnola Bulu und the alleged case oJ SuryuInlemotional are relettant fbr the confi.scalion proceeding ol the goods i ryorted by Sri RunrTroders/Sushil Kttmor Singh/Badshah and the connected penulty proceetlings. These allegations hat'e heenrude wilh uherior ruoti'e to prejudice the mind of Ld. Adjudicating Authority. Furthernnre, M/s Pct.sific

Enterprises and )t s Suryu hterntttional ore not parties to lhe inslanl SCN.

5. Allegation No. 1 : "Shri Sojal Dos v,as also inslrtonentol in .fttcililaling the cleoronce of such goods in astrruch as he ut the instonce oJ Nm,neel Kuntar, searched ;frtr u per.son who could handle the job of clearanceofthe misdeclared consign rcnls and in the process localed Nasir Uddin. He introduced Nasir llddin uith ct

number of such brokers/importer.s who intended b bring in the misdeclared good,s in conniyance v,ith theD(l Navneel Kumar"

Ans: (i) The above allegation is unlrue and the sonte is based on qssumptions and/or presumptions and/orsuspicion. These allegations are unfounded and devoid of any evidence/proof on record os would beevident from the Show cause notice (in shorl "SCN".1 and its Relied Upon Docunrents (in short "RUD").

(ii) Nasir Uddin: The statentenl doted gth June 2017 of Nasir Uddin (in short "Nasir") reveals asfollows:

. From 2006 I (read Nasir Uddin) used to work at freeloncer at Air Cargo Complex NSCBI AirportKolkata when I prepored Sale Tax Way Billfor dffirent CIIA*.

(Para 11.3.1 at poge 17 oJ the SCN)

Navneet Kunrur knew nrc as I used to y)ork dt Air Cargo Complex. (Refer ansv,er to Q.2)

One and haffmonth back I was called by Navneet Kumar, Deputy Commissioner, Air Cargo Complexat his chamber of the 2ndJloor of Air Cargo Complex. (Refer tmswer to Q.2: also refer to Pars 11.3-3ofSCN at Page 17).

When I went to his chanber he inlroduced me with Mr Ansari as intporter and direcled nrc lo assistMr Ansari in clearance of imporl consignmenls. (Refer onswer lo Q.2 and pora I 1.3.3 ofSCN).

After that I approached Aloke Ghosh G card holder of Sodguru Forwarders Pvt- Lrd. b allow me touse his G card for clearance of impofl corgo as directed by Ndweet Kumor and also informed hinrthat there would be no problem os Noweet Kumor,DC has given this work and he (Aloke Ghosh)agreed to my proposal ond I informed Novneet Kunqr accordinS1ly. (Refer answer to Q.2 and paraI 1.3.3 of SCN).

Mr. Ansari inrported goods in the name of Bisv)as Enlerpise (Refer anster to Q.6).

. ".... ... ....he (read Nasir Uddin) further added that he was handpicked by Sri Ncnneel Kumar lo clearsuch ntisdeclared consignment... .-.. " (Refer to para 12.1 l (e) ot page l7 ofthe SCN bectring DRI F. No.DN/KZU/CF/h1I15/Enq-50/2017/Pt. Bisu,as dated 01.12.2017 in the matter of Biswas Enterprisei..I ,... :..-

t;,(iii)Sttshil ktmar Singh, proprietor of Sri Rom Traders has lent his IEC to Shahansho Mallik-alias.. ., .

Badshah and Navneet Kumor Jbr easy nrcney (para 10.1.3, 10.1.6 at page l7 ofthe SCN) a

.. -,'t-.'SCN: DRI/ KZU /CF/INT-7,/ Pt. Sri Ram/464o dtd 4.72.77 Page 59 of 145 :: ':

F.No. S33- 2312017 ADIN (A&A)(iv)Bulshtth rlrr rlc// ('t)nn((tci to l)(' .\-Lt\tlccr Kulttu. prc untl posr hi.\ po.\rittg us Dcput.t('ortnri.s:; iorter of ('t{.\lont\ ut .-1lR (irgo ('ttrrtpl<'.r. Ktlkrtu. ln hi.\ \ldlaDpnl dutul 211.0(t.201-.)9.06.2011 und 18.09.201' u s lllt ol tlrc ('u.\tolt.\ ..1(t. ht .\tuted intu.tliu thut:

Dtn'ing his t'otrr'.sa ttf husines.s in Furt<t ,llurkat. KltiLldcrl)ore in uhout 201 5. he u.sctl lo bring ('hin<tt,nufiila hortdsct.t, ntohilc uttes.sories /irnt ltxtrl tttttriers, yhich :r.'ere. ul tiltcs. inlerceplcd ht thc('(.lP) rlficers. ln lhul (onncction hc used lo ri.\il CC(P) olfica uncl lhcre he nrct Nuyneet Ktunur. DC.(I'qru 10.2.1 ol rhe SCN)

Latcr (luring llut'('h 20I7. yhen he wus uhout lo.\tutl inry)orting goods. he tuma to knoy'tllut NorneetKtttnur v'as the DC ut Airport Curgo ond lhen he culled hin (Nd|neel) in his nobile 91J300150950 untlmet hint in his rffic'e ulongvith Sushil krnrur Sirtglt. (Pqru 10.2.5 of the SCN)

The intports y'ere ntistlec'lored so as lo ntuke sone prolit after nuking paynrcnts to the Cuslon[Olficers and the DC. lf the goods u,ere not misdeclared and the.full duty u,ere to be paid on the goods,there v'ould be no proft at all. Thol wus v,hy the consignflents u,ere orranged lo be cleared v,ithoutexeminalion as far as possible and was misdeclared nol lo reyeal the contetlts like u,atches and high-mobile phones. (Para I0.2.10 of the SCNI

He paid k. 1 lakh in cesh to DC Novneet Kutnur. Ntrvneet Kumar used to give hint a phone nunfier,sonte one used to cotlloct hittt and collect the nrcney near Airport No. I gote. (Para 10.2.11 ofthe SCN)

(v)Nasir was working for Badshah before posting of Sri Natneet Kumer,DC at Air Corgo Complex. htlhis conneclion, please refer to paragraph 10.2.6 of the SCN u,hich will speak for itself. SCN revealsthat Badshah, Nasir, DC Nayneet Kumor and Customs Officers conspired together to inryorlmisdeclared consignments for monetary consideration. (Para 10.2.5, 10.2.6. 10.2.10 and 10.2.11 atpage )3 ofrhe SCN)

fiii)Sajal had no role in the imports nrude by Sri Ram Traders/Sushil Kumar Singh/Badsh<th. Theanswering nolicee did not play any role in respect of the subject intport under adjudicslion. As wouldappear from the body of the SCN, as stated hereinoboNe, that conspiracy lo import misdeclared goodswas halched between Badshah, Nasiruddin, Navneet Kuntar and Cuslom Offcers. There is noallegation, as could be none, lhal nolicee Sqjol Das ever intended to derive any benefit or he receivedany benefit or there was any occasion for hint to receive any benefit in any manner whalsoever.

6. Allegation No. 2: ".....-.-He also allowed his ffice nwchinery to be used by Shri Nasir Uddin lo receivethe mails from the inporter and especially from Late Shri Mayur Mehta and Ms. Swati Vora @ MonikaVora. Where fronr it v,as crystal clear lhal the goods were grossly misdeclared and also facilitated theclearance of such goods through Cusloms

Ans: (i) The instont SCN reloles to import of misdeclared goods by Sri Ram Traders/Sushil KumarSingVBadshah. There is nothing to show that ofrce machineries and equipnenls of Sri Sajal Dos wereused lo receive nuils from Sri Rarn Troders/Sushil Kumar Singh/Bodshah. Hence, the ollegation ntade isnot only unlrue but also irrelevanlfor the purpose ofadjudication ofthe instant SCN.

(ii) The noticee Sajal Das is a partner of a CIL4 firm. Such CHA frm cleared the goods for reputed clientsv,hich include tr[/s Tata Cumntins Pvt. Linited, l4/s Bhushan Power and Steel Limited, M/s Tata ConsunterProducts Limited, l,I/s HDFC Bank, LAS Yes Bsnk, l,l/s The Shipping Corporation of India Lintited, lLl/sSupertron Electronics Pvt. Ltd, l[/s Alipore Zoo and many more. Sri Sajal Dqs wcts the only CIIA in ACCKolkata who had o fully equipped ofice in ACC which had computer and internet conneclion. Il is a known

fqcl thal al the releyanl time, other CHAs did not have of/ice set up in the Air Cargo Conrplex. CHAs extendcooperalion in sharing offce operotors, machinery and equipnenls. In case of urgency, many CHAs andtheir staff availed the internet focilily /rom rtfice of Sri Sajal Das. Sri Sajal Das was not aware qs lowhether such good gesture on the porl of him was ever misused by Nosir Uddin. Arm-tv)isting this bqplg ., ,.fact,noliabilitycanbeattribuledtoSriSajalDasbecausetherecouldberulne.MayurMehtahimself'lltm-aCHA.SofariheanSu'eringnoliceeistn,ire:MayurMehtaisnontoreinthisy'orld.

t:- :7. Allegation No. 3: "In his stotement recorded under Sectktn 108 of the Customs Ac\ 1962, Sri SdjAI Das .

,:. 'SCN: DRI/KZU/CF/INT-75/ Pt. Sri Ram/464O dtd 4.72.77 Page 60 of 145 ""

F.No. 533 23l20i7 ADJN (A&A)

llulu Truding. lhe firm rclutul to ort<'Shri ,\uiul Dus l lliL.ll (.ut (nl.r. l)ro\.( hi.s nerus.."

DEPB untl olhcr s<t'ips vhi(h ura .fi'c(h solLl arl purchu.sed. 7 he .*id DEPti Lic'cnsa ure xtld bt llrc

7'1rc orvering notice? lid nol receit'e unv puttrtent.lrom lli:; Nirnulo Bqlo Ti.uding ('onpanl: or. its .solcpr(4)rietor Chuttdan Dus nor did the utsvering nolicee pov on\. one ofi hehulJ oJ.the :;aid firm. Thetttt.*terittg rtrtlicee hos no pov'er or aulhorilt lo operale hank acuttotts of Mt's Nirnn u Balu Trading Co. orded v,ith its tronsoctions and occouttls. Furtherntora, there is nothfug in recortl lo shou'that the cnsterin2i,lolicee was bcneficiary oJ the suid sunt. There is no docturcnl or stule rcnl because there coultl ba none tolink the unsu,ering noticee u,ith such poynrcnl. The bald ollegotions nrude against Sri Saial Do.\ is nolcorroboroted by olher evidence. Sri Chandun Das, proprietor of Nirnrula Balo Trading Contponv v)os noterantined. The allegation is based on assuntption or presumption or suspicion and it has no legs to.;tand.

9. Allegolion No. 1: " ... ... ... ....Sri Sajal Das being a man in the business of Customs Broker, v,ould krtottquile $,ell lhat he was going b Jacililale a conspiracy to bring in misdeclared/contraband goods u'hich areliable lo conJiscation under lhe Custonts Act, 1962 and thereby he rendered himself liablefir penolty underCustoms AcL 1962. "

Ans. The answering nolicee slates ond submits thal the ubove ollegotion lacks factual basis and the sameore unfounded and uncalled for- The answering noticee says thot a ntyth has been created against him byartfully oncmging a few selecled ollegolions and exaggerating lhings without any langible or evencorroborative evidence because there could be none, to aslronomicol levels and a percepliotl has beencreated by speculotions, imogindlions, ossumplions and presumptions. As stated eorlier, the onsu,eringnoticee hod no role in imporlation/clearance of the subject goods.

9. Allegation No. 5: "It further oppeers thol Shri Sojal Das knowingly and intenlionally used or cot$ed tobe made fake/forge import documents which do not correspond to the nnterial inryorted by SuryaInternalional. "

Ans: The allegation is vague and lhe allegation has been ossumed and/or presumed without any evidenceor record. There cannot be ony motive for lhe ansv,ering noticee to fudulge in using or causing to be made

fake/forged documents in re.\pect of import(s) with y)hich he had no conneclion ofany manner whatsoeyer.There was no occasion for answering nolicee lo use or coused lo be used any fake or forged importdocuments nor he did so- It is reiterated that there is nothing on record lhal answering nolicee was in anyv,oy involved or benefited or intended to derive benefit from the import in queslion. In any event, theseallegalions do nol perlain lo import which ore subject matter of instant SCN. L[/s Surya Inlernational is nolo porty to the instant SCN.

10. Allegation No.6: " Therefore, it appears that Shri Sajal Das has rendered himself liable for penalaction under Section I l2(a) Section I l2(b) and Section I l4AA of the Customs Act, 1962 for his act ofonission and commission. "

Ans: (i) The answering noticee states and submits that Section I l2(a) of the said Act has been wronglyinvoked against hint as neither he did nor did he omit to do any act which rendered the subject goods liablelo confiscalion nor did he abel lhe doing or omission of any such act. Furthermore, the SCN does notreveal any acl of obetment on his parl save and except insinuations.

SCN: DRI/ KzU /CF/INT-I,/ Pt. Sri Ram/464O dtd 4.72.77

(ii)Another Section I l2(b) of the Act has been wrongly invoked against hint in as much as lhe answeringnolicee neither ocquired possession nor rgas he in ony woy concerned incarrying/removing/depositing/harbouring/keeping/concealing/ selling or purchasing or in any ntannerdealingwith the .;ubject goods. :..,r ,i,.,,:. .

(iii)Section I11,4,4 has also been wrongly invoked against the onsv,ering noticee as neilher there W:eLA:i;' "occasion for him lo sign any declaration or statenrcnt or document nor did he do so- There is no materjal loL

.

F.No. 533 23120i7 ADJN (A&A)ttrltltorl irrttt'rrlion of lha tuil ,\c<1itnt

(r)The s(tid seclion.t hutc been inwtked villtoul Lrrl ohjcclive stcnulurtl utd ntcrely on the husi.; of .su.t1titirtlor l/or as s unpl i ort.s u n cl,'o r ltre s rurutt i o tts.

I I .ht t'iau' of the strbmissions supru, the busic' retytirenenl ol lcnt for inyocution of- Section t I 2 (a), I I 2 (h)& 111,L4 o/ the Custons Act 1962. to penuli:e the said nolicee No. 1l has not heen tnd cannol be sai.l tohave been salisJiad. This i,\ :;etlled br innwnerttble decisions oJ'Courls od Tribtnals. As held hy theTribunal in Ambassodor hdi Corporation vs. ('onrntissioner of Cuslottts, 2003 (156) ELT tll (D, penaltttfbllou's guilt and. as such, lhere can be no intpositiott of penalty upon o person v'ithout disclosing andestablishing with evidence lhe role played by the said person. In this respect relionce is also placed onMe oco Engg. Pyt. Ltd. -l/s- Contmissioner ofCusroms, 2005 (182) ELT 210 (T).

l2.lt is humbly submilted that the Hon'ble Conntissioner nruy be plettsed to drop the SCN against theonswerinS4 noticee no. 11, Sri Sajal Das."

4L.L2. Shri Santosh Mishra (Noticee No. 12)

No written submission has been received.

4L.13, Shri Joydeb Das (Noticee No. 13)

No written submission has been received.

42, Records of Personal Hearing:-

Personal Hearing given by Shri R.P.Singh, the then Commissioner of Customs (A&A)to all the Noticees on 05.03.2018.

As there had been a change in the Adjudicating Authority,given to all the Noticees in terms of para 16 ofLO53l02lZOI7-CX on the subject "Master Circular onAdjudication and Recovery" dated 1O.O3.2O17 issuedCX.1 before adjudicating the same.

fresh PH had to beCBIC Circular No.

Show Cause Notice,from F.NO 96/t/2O17-

As per records, Personal Hearing conducted before the AdjudicatingAuthority(AA) is tabulated as under:

NoticeeNo.

Name 1"t PHDate

Appeared

Adjournmentsought

2'd PHDate

Appeared

1 M/s. Sushil Kumar Sing h

lrEc 0206016417123.O2.22 No No NA

2 Shri Shahansha Mallik aliasBadshah

07.03.22 No Yes 22.03.22

3 M/s. Sadguru ForwardersPvt. Ltd.

Yes NA NA

4 Sh ri Navneet Ku mar No Yes 08.03.22 Yes

5 Shri Vikki Kumar 23.O2.22 Yes No NA NA

6 Shri Pranabananda Bala 23.O2.22 Yes No NA NA

7 Md. Nasiruddin 37.O7.22 Yes NA NA

B Ms. Swati Vora alias Monika 25.O2.22 No NA

9 Shri Arnab Sinha No NA

'CN: DRI/KZU /CF/INT-7' / Pt. Sri Ram/464O dtd 4.72.77

lirtlht ur;trcrirrg troti<'ee luuthl.t suhrtits th t ,Sections I l)ru). ll2thl u l l1-1-1 ol the .1tt hute hccn

unswcring noti(ce irt the Jitts turtl cirtult.\lates of thc Ltt.tr:.

NA

Yes

o2.o2.22 No

25.02.22

No

NA

25.O2.22Yes (su bject togrant of crossexa mination)

Shr Aloke Ghosh

5hfl 5alal Das

Snrr Santosn fvf rsnra

31

a-d1

01

bioi

22

,,-

Yes.f es

No

F.No. s33- 2312017 ADJN (A&A)No NA NA

NoTNANANo]NANANo

12

13 Sh ri loydeb Das 07.o3.22 NA

42.1. M/s. Sushil Kumar Singh [IEC O2O6OL64L7] (Noticee No.1):-Personal Hearing was fixed on 23.02.2022 at 2:30 PM and the same was

intimated to him at the address as per records available vide Department letterdated 11.02.2022 which had been duly received by the Noticee as per India PostTracking Website and also uploaded on the official websitehttp://www.kolkatacustoms.qov.in/ But he did not a ppear for the same and also didnot ask for any fresh Personal Hearing in the subject matter.

42.2. Shri Shahansha Mallik alias Badshah (Noticee No. 2):-

42.2.L. Personal Hearing in virtual mode was fixed on 07.03.2022 at 2.30 pmand the same was intimated to him at the address as per records available with theDepartment vide letter dated 21.02.2022 which had been duly received by theNoticee as per India Post Tracking Website and also uploaded on the official website

www.kolkatacu ms ov. tnh t

42,2.2. Vide email dated 07.03.2022, Shri L. Vishal Kumar, Advocate andauthorised representative of Noticee No. 2 had prayed for adjournment on thegrounds of late briefing by the Noticee to him (on 07.03.2022 at about 14:30 hours).

42,2.3. Accordingly, a second Personal Hearing was accorded on 22.03.2022 at2.45 pm and the same was intimated to him at the address as per records availablewith the Department vide letter dated 16.03.2022 and vide digital media to hisauthorised legal representative on 08.O3.2022 which had been duly received by theNoticee.

42.2.4. Shri L. Vishal Kumar, Advocate appeared for personal hearing in virtualmode an informed, inter-alia, that

42.2.4.L. Vakalatnama had been submitted on 07.03.2022 by email

NANo

42.2.4.2. The Noticee was neither the importer nor the IEC holder. His namecrops due to statements of Shri Sushil Kumar Singh (Noticee No. 1) and Shri ArnabSinha (Noticee No. 9). Shri Arnab Sinha stated that though he had never met ShriShahansha Mallik physically but given the IEC to him. Shri Mallik has a small shopand has no connection with EXIM business. It is a peculiar situation as no role hasbeen attributed to Shahansha Mallik. No summons where issued but he gave hisstatement under section 108 of Customs Act, 1962.

42.2.4.3. Noticee was coerced by DRI to give his statement which was retractedbefore the Court after release on bail. Hence Show Cause Notlce could not have beendone based on retracted statement. Also, the independent witnesses are notindependent. There was no document to show how the independent Panch of thePanchnama dated 22.06.2017 namely Noton Das s/o Madan Das and Arindam Dass/o Akhil Kumar Das reached the ACC on that day. The Role of Aloke Ghosh was alsodubious hence the seizure was per se bad in law.

. , i'i.i, ,-' .; . .

i,' ,-t.-lr;i

:-- j-

' "., ,ri !.r tr ,

SCN: DRI/ KZU/CF/INT-15/ Pt. Sri Ram/464O dtd 4.72.77 Page 63 of 145 .- - . :' ..'1.,.,r,'

F.No. 533 23l2017 ADIN (A&A)42.2.4,4, He proposed for cross examination of Sri Sushil Kumar Singh and ShriArnab Sinha who who have given incriminating statements against Noticee No.2. Hewould give his final defence after cross examination. in the in the CDR there was nomention of calls between Shahansha Mallik and Arnav Sinha. Shri Malik only dealt inpurchase / sale of mobile phones made in India.

42.2,4.5. Shri L Vishal Kumar requested for consideration of his requests.

42.3, Ylls. Sadguru Forwarders Pvt. Ltd. (Noticee No, 3):-

42-3.L, No fresh Personal Hearing was accorded as Shri Arijit Chakraborty,Advocate and Shri Prabir Bera, Advocate, authorised representative of NoticeeNo. 3 had given common submission during personal hearing in respect of SCNissued under DRI F. No. DRI/KZU/CF/Int-15/ENQ-50/20I7/Pt. Biswas/4478 dated04.12.2017 through virtual mode and also referred to several decisions of differentHon'ble High Courts and Tribunals to substantiate submissions of the Noticee i.e. ourclient.

42.4. Shri Navneet Kumar (Noticee No. 4)r-

42.4.L. Personal Hearing in virtual mode was fixed on 25.02.2022 at 2.30 pmand the same was intimated to him at the address as per records available with theDepartment vide letter dated 11.02.2022 which had been duly received by theNoticee as per India Post Tracking Website and also uploaded on the official websitehttp ://www. kolkatacustoms.qov. i n/.

42.4.2. Vide email dated 01.03.2022, Shri Rajnish Kalawatia, Advocateauthorised representative of Noticee No.4 had prayed for adjournment ongrounds of urgent attendance at Pune Family Court on 25.03.2022.

andthe

42.4.3, Thereafter a second Personal Hearing was accorded on 08.03.2022 at2.30 pm wherein Shri Kalawatia submitted, inter alia, that:

42,4.3,L. Out of 35 paras in SCN, 15 Paras are irrelevant to SCN. Similarly 59RUDs ot of 105 RUDs are irrelevant for adjudication on instant SCN.

42,4.3.3. In B/E No. 9948804 dated 03.06.2017, it was assessed and audited inthe ICES, but duty was not paid. Hence, question of examination, OOC and GatePass does not arise and Noticee DC has no role to play.

42,4.3,4. In respect of AWB No. 2175543404 dated 05.06.2017, this is not clearwhether B/E was filed. In RUDs, no inventory/ Panchanama had been given.

42,4.3,2. Coming to Para 4 of SCN, he stated that B/E No. 9948788 of O3/06/t7had been assessed and audited in the ICES.'OOC'in the system had not been given.Instead, signature of Shed Appraiser and Examiner has been forged on manula copy.5olo examination (B cartons) was done and no discrepancy was found in theexamination report. When DRi intercepted, goods had been examined but Examinerhad not submitted to Appraiser in ICES. Thus Noticee DC has no role in this B/E. Nogate pass was issued by AAI and has not been given as RUD.

42.4.3,5. With respect to Para 30.5 of the SCN, he said, SCN is based on surmisesand conjectures about role of Navneet Kumar. As 2 BEs were being assessed in the.system, question of Noticee giving manual release is totally false. RUD (763-766), '

(756-762) does not show manual release order by Noticee DC.

.r, liSCN: DRI/ Kzu/cF/ INT- 75/ Pt. Sri Ram/464O cttct 4.72,77 Page b+145 .t: l

.,r t ^," .

ri1\-..1r'

No.533- 2 3/2017 ADIN {A&A)

42,4.3,6. Noticee is not the importer/exporter/CHA/ Beneficial owner of the goodsHence SCN u/s 724 of the Customs Act, 1962 cannot be issued against him. He hasacted in officlal capacity & protection u/s 155 of the Customs Act, 1962 is available.

42.4.3,7, In view of the Hon'ble Supreme Court Judgement in case of M/s. CanonIndia (P) ltd and Shekhar Aggarwal, this SCN cannot be issued by DRL

42.4,3.LO. After examination and cross-examination, the Noticee shall file reply forhis defence, as giving final reply at this juncture will open his defence. He requestedto give PH in personal mode also to show documents in his support.

42,5. Shri Vikki Kumar (Noticee No.5) and Shri Pranabananda Bala (NoticeeNo. 6):-

42.5.L. Personal Hearing in virtual mode was fixed on 23.02.2022 at 2.45 pmand 3.00 p.m. for Noticee Nos. 5 & 6 respectively and the same were intimated tothem at the addresses as per records available with the Department vide lettersdated 11.02.2022 which had been duly received by the Noticees as per India PostTracking Website and also uploaded on the official websitehttp ://www. kolkatacustoms.qov. inl.

42.5,2.L. There are 2 BEs and 1 AWB in this SCN. in respect of AWB No.2775543404 dated 05.06.2017, BlE was not filed, no duty was paid and henceexamination was not possible. B/E No. 9948804 dated 03.06.2017 is pending inqueue of Group Appraiser and no examination was possible. In Panchanama wrt B/Eno. 9948804 dated 03.06.2017, it is stated that apparently 8 cartons out of 110cartons were opened for examination. This is wrong allegation because examinationwas not done. Hence opening was not possible.

42,5.2.2. Page 763 to 766 of RUDs, 'OOC' column is blank for B/E No. 9948804dated 03.06.2017. Examination report was also blank.

42.5,2.5. No Panchanama was drawn in respect of AWB No. 2175543404 dated05.06.2017. Para 11 to Para 23 of SCN is not relevant for this SCN. Out ofthose 35paras in SSCN, 15 Paras are irrelevant (60 out of 70 pages).

SCN: DRI/KZU/CF/ INT-7'/ Pt. sri Ram/464O dtd 4.72.77

42.4,3.A, Noticee prays for cross-examination of those witnesses whosestatements have been relied by DRI in SCN.42.4.3.9. Noticee also prays for cross-exa m ination of ADG, DRI and Investigationofficer of DRi.

42.5,2. Shri Rajnish Kalawatia, Advocate and authorised legal representativeappeared on behalf of both Noticees and gave common submission, wherein hestated, inter-alia, that

42.5.2.3. In respect of B/E No. 994B7BB of O3/06/17, it is alleged that 2 out of153 cartons were opened and subsequently sealed (reference at Page 990 f RUD). InIECS, examination report has been filed by SHri Bala in respect of B cartons. Page999 of RUDs gives details of cartons opened by the Noticees. All theses B cartonscontained goods as per declaration.

42.5.2.4. Page 756 to 762 of RUDs deal with B/E No. 9948788 of 03/06/17. AsVikki Kumar has not given'OOC'(as seen from system), gate pass was not issued.

F.No. S33 2312017 ADJN (A&A)42,5.2.6, Para 74.4 & 14.5 of SCN deals with statements of Noticee No. 5 and 6.No question with respect to consignments covered by subject SCN were asked byDRI. This SCN has been issued on surmises and conjectures.

42.5.2.7. As the Noticees have acted in Government's interest, protection u/s 155of the Customs Act, 1962 should be available.

42.5,2.9, DRi cannot issue SCN u/s 724 of the Customs Act, 1962. Hence DRI hasno jurisdiction as per Canon India Judgement and Shekhar Agarwal ludgement givenby Hon'ble Supreme Court. Both Noticees request for cross-exa m in ation of allwitnesses, whose statements were recorded u/s 108 of the Customs Act, 1962.Noticees are not eh owner/ possessor/ beneficial owner of the goods, hence SCN u/s124 of the Customs Act. 1962 cannot be issued. Cross-examination of DRI is soughtwrt their roles defined in SCN. As Noticees have retracted their statements, theirstatements have no relevancy.

42.5.2,LO. Considering the above, the allegations against Noticee No. 5 & 6 shouldbe disposed off in too. Reply to be filed in defence after cross-exa m ination.

42,6. Shri Nasiruddin (Noticee No. 7) and Shri Aloke Ghosh (Noticee No.1O):-

42,6.1.L. SCN is beyond jurlsdiction of DRI as per Canon India (P) Ltd Judgement.He stated that page 4 of submission submitted today deals with his interpretationabout non maintainability of SCN u/s 124. If the importer gets scot free on the basisof Canon India Case Law, then how penalty can be levied on Co-Noticees.

42.6.t.3. Noticee No. 7 is only a labour & has no knowledge of Engllsh & CA'62.Similarly Noticee No.10 was only doing menial jobs. On the basis of Daily Pass, theywere entering ACC. Both the Noticees did not have access to the Customs Officersand could not be paft of scam. They have only shifted the cartons without previousknowledge of its contents. They were mainly engaged by Transporter for such jobs.

42.6.L.4. Shri Shovendu Banerjee stated that his defence submissions in r/o othereleven SCNs invoking the Noticee No.7 and Noticee No. 10 is identical. He will submita letter to this effect, so that PH is not required for Noticee No. 5 and Noticee No. 8is respect of such 11 SCN.

42.5,2.4, As per Para 23.7 of SCN, acts of Arnab Slnha are dealt, which can giveidea about the Modus Operandi of this case.

42.6.L, No fresh Personal Hearing was accorded as both Noticees beingrepresented by Shri Shovendu Bannerjee, Advocate recorded common submissionvis-a-vis all 12 cases related to above Noticees during the virtual Personal hearingwith respect to M/s. Pacific Enterprises & Ors. held on 31.O7.2022, wherein he stated,inter-alia that

42.6.1.2. Further, he stated that both the Noticees have retracted theirstatements on 16.03.2019 before the Ld. ClM, Barasat in CC No. Lt67 /2017 (A.Ghosh) and CC No. ll4O/2O17 (Nasiruddin)

42.7. Ms, Swati Vora alias Monika (Noticee No. 8):-

42,7.L. Personal Hearing in virtual mode was fixed on 25.02.2022 at 3.00 pm .

andthesameWaSintimatedtoherattheaddressasperrecordsavailablewith'the-' i -- ,;

SCN: DRI/ KZU /CF/INT-7|/ Pt. sri Ram/464O dtd 4.72.77 eage 66 o? i45 '., t :''t:.

F.No. S33- 2312017 ADJN {A&A)Department vide letter dated 11.02.2022 could not be delivered by the postalDepartment as per India Post Trackrng Website and also uploaded on the officialwebsite htto://www.kolkatacustoms.qov. jnXl. But neither the Noticee nor anyauthorised representative appeared on her behalf for recording submission.

42.8. Shri Arnab Sinha (Noticee No.9):-

42,4,L. Personal Hearing in virtual mode was fixed on 25.02.2022 at 3.15 pmand the same was intimated to him at the address as per records available with theDepartment vide letter dated 11.02.2022 which had been duly received by theNoticee as per India Post Tracking Website and also uploaded on the official websitehtto://www. kolkatacustoms.qov.in/. But neither the Noticee nor any a uthorisedrepresentative appeared on his behalf for recording submission. Although vide emaildated 22.02.2022, the Noticee had re-iterated his reply vide letter dated 19.02.2018.wherein inter alia he had requested for adjournment of Personal hearing subject tocross examination of Shri Sushil Kumar Singh (Noticee No. 1), Shri Shahansha Mallikalias Badshah (Noticee No. 2) and Shri Nasir Uddin (Noticee No. 7)

42.9. Shri Sajal Das (Noticee No. 11):-

42.9.2. Shri V.N.Dwivedi, Advocate and authorised legal representative ofNoticee No. 11 appeared for Personal Hearlng and submitted, inter-alia, that:

42.9.2,2, From the statement of Shri Nasiruddin, it is seen that he has not givenany statement against Sajal Das. Only Aloke Ghosh, G-card holder of Sadguru hasgiven incriminating statement. Sajal Das was doing CB work for reputed companieslike TATA Group.

42.9.2.3. Regarding B/E of Shri Ram Traders, Mayur Mehta and Swati Vora arenot connected.Sajal Das knew Mayur l\4ehta & Swati Vora as they were connected tothe same CHA fratern ity.

42.9.2.4. In this case, Shahensha Mallick allas Badshah was the real importer,though Sushil Kumar Slngh was the importer having given his IEC. SCN revcealsclosed circuit contact of Navneet Kumar, Badshah and Nasiruddin & other CustomsOfficers and Sajal Das had no role to play in respect of this SCN.

42.9,L. Personal Hearing in virtual mode was fixed on 07.03.2022 at 3.00 pmand the same was intimated to her at the address as per records available with theDepaftment vide letter dated 21.02.2022 which had been duly received by theNoticee as per India Post Tracking Website and also uploaded on the official websitehtto : //www. kol katacustoms. gov. inl.

42.9.2.1. There is no material against the Noticee & based on suspicion only. Hereferred to Page-66 of SCN regarding allegations agalnst Sajal Das.

42.9.2.5. Noticee has not received any benefit in cash or kind with respect to theSCN. Regarding payment of 5lakh received by Nirmala Bala Trading Company, hehas absolutely no link with the firm. DRI has not caused investigation with respect toNirmal Bala Trading Company Bank Accounts. Owner of Nirmala Bala TradingCompany has not been subjected to recording of statements. The alleged payment ofRs. 5 Lakh was done by M/s. Pacific Enterprises and hence no connection with M/s.Shri Ram Traders is established. DRI has mechanically made Sajal Das as noticee inthis SCN. Sajal Das has not signed any documents of Shi Ram Trader. No recovery

',,i;,ji .,. 1:,scN: DRr/ KZU/CF/1NT-75/ Pt. Sri Ram/464O dtd 4.72.77 cage ot O;tts ,, ,u 1...

ri:;i.

F.No. s33- 2312017 ADJN (A&A)has been made from his office. Exact role played by Sajal Das has not been dealt inthe SCN at all. Thus penalty under section 112 and 114AA should be dropped.

42.LO, Shri Santosh Mishra (Noticee No. 12):-

42.LO.L, Personal Hearing in virtual mode was fixed on 07 .O3.2022 at 3.15 pmand the same was intimated to him at the address as per records available with theDepartment vide letter dated 27.02.2022 which could not be delivered to the Noticeeas per India Post Tracking Website and also uploaded on the official websitehttp://www.kolkatacustoms.qov.in/. But neither the Noticee nor any a uthorisedrepresentative appeared on his behalf for recording submission

42.L1. Shri Joydeb Das (Noticee No. 13):-

42.11.L. Personal Hearing in virtual mode was fixed on 07.03,2022 at 3.15 pmand the same was intimated to him at the address as per records available with theDepartment vide letter dated 21.02.2022 which could not be delivered to the Noticeeas per India Post Tracking Website and also uploaded on the official websitehttp://www.kolkatacustoms.qov.in/. But neither the Noticee nor any a uthorisedrepresentative appeared on his behalf for recording submission

43.1. I have carefully gone through the case records, supporting documents placedbefore me, revelations during investigation, written replies, written and oralsubmissions made by the Noticees (or their representatives ) at the time of PersonalHearing scheduled on various dates. Further, sufficient opportunities were extendedto all the Noticees to be present for Personal Hearing, following the Principles ofNatural Justice, but only Noticee No. O2 (Shri Shahansha Mallik alias Badshah),Noticee No. 03 (M/s. Sadguru Forwarders Pvt. Ltd.), Noticee No. O4 (Shri NavneetKumar), Noticee No. O5 (Shri Vikki Kumar), Noticee No. 06 (Shri PranabanandaBala), Noticee No. 07 (Md. Nasiruddln), Noticee No. 10 (Shri Aloke Ghosh) andNoticee No. 11 (Shri Sajal Das) respectively appeared for Personal Hearing, eitherin person or through their authorised representative.

43.2. Noticee No, O1, i.e., lt4/s. Sushil Kumar Singh [IEC 0206076417), NoticeeNo. 08, i.e., Ms. Swati Vora alias Monika, Noticee No. 12, i.e., Shri Santosh Mishraand Noticee No. 13 i.e. Shri Joydeb Das, neither replied to the Show Cause Noticenor appeared for Personal Hearing either in person or through any of their authorizedre p resentative( s) .

43,3. Noticee No. 09, i.e., Shri Arnab Sinha gave written defence against thesubject Show Cause Notice but did not appear for Personal Hearing.

44. I would first discuss whether the ends of Principles of Natural Justice havebeen complied with or not in this case.

44.L. I find that the proper Show Cause Notice along with Relied Upon Documents inelectronic format were issued to all the Noticees as per the provisions of Section 153of the Customs Act, 1962.

43. Discussion & Findings:-

44.1,L. Request for legible authenticated copies of RUDs have been preferred byNoticee Nos. 6,7,10 & 11. In this regard, I refer to Para 32 of the subject SCNwhich has been reproduced as under: ., r.

,,.;,..,i.,-'.:SCN: DRI/ KZU/oF/INT-75/ Pt. Sri Ram/464O dtd 4,72,77 Page 68 of 145 .. ,, o,'^ .;';:

F.No.533 2312017 ADt N (A&A)u"if th. noticee so desires, he may, on any working day during the next 7(seven) daysinspect the original relied upon documents, which are annexed to this notice as perlist attached, in the office of the Directorate of Revenue Intelligence, B, Ho Chi MinhSarani, 2nd & 3rd Floor, Suite 16 & 17, kolkata-7)] 071"

44,L.2, Nowhere in the written submission or PH proceedings conductedthereafter have the Noticee Nos. 6, 7, 10 & 11 stated that they had exercised theoption provided to them vide the SCN itself before requesting for the authenticatedcopies. Simply alleging that the electronic copy provided to them by DRI to becorrupt or illegible and not exhausting available options, the prayers for re-supply forRUDs appears to be delaying tactic which does not have merit and have not beenaccepted.

44.L.4. Noticee Nos.4,5 & 6 through their common authorisedrepresentative Shri Rajnish Kalawatia, Advocate had requested for supply ofauthenticated copy of Gate Pass No. N2O17O6O5OO7O issued by AAI, CargoTerminal, NSCBI Airport w.r.t consignment under Bill of Entry No. 9948788 dated03.06.2077 filed by M/s. Sushil Kumar Singh & Panchanama proceedings dated2L,O7,2OL7 with respect to consignment under AWB No. 27715543404, duringPersonal Hearing conducted in the instant matter. The requested documents whichwere not part of RUD had been sought from DRI offices. Vide letter dated 11.03.2022and vide email dated t4.03.2022, the Noticee Nos. 4, 5 & 6 through their authorisedrepresentative were intimated for inspection of the copy of Gate Pass as well asPanchanama proceedings on 77.O3.2022 at 12.30 p.m. but they failed to avail thesame. Moreover, digitised version of Gate Pass as well as Panchanama proceedingshad been duly forwarded to the Noticee Nos. 4, 5 & 6 via their authorised legalrepresentatfve vide email dated 23.O3.2O22.

44.2. Fufther, I observe that opportunity of being heard has already been granted toall the thirteen Noticees to defend their case. Noticee No. O1, i.e., M/s. SushilKumar Singh UEC 02060164171, Noticee No. 08, i.e., Ms. Swati Vora alias Monika,Noticee No. 12, i.e., Shri Santosh Mishra and Noticee No. 13 i.e. Shri Joydeb Dashave failed to avail of the same. In cases where the Noticees have not been able tobe found at their Postal Addresses, copy of the personal hearing intimation lettershave also been uploaded on the official website of the Kolkata Customs athttot / /www.kolkatacustoms.qov.inl in com pliance with section 153 (1)(e) of theCustoms Act, 1962. I find no submission/ representation seeking adjournment ofhearings have been submitted by them till date and adequate time has passed sinceissuance of SCN and PH.

44.3. Noticee No, O2 (Shri Shahansha Mallik alias Badshah), Noticee No. 03 (M/s.Sadguru Forwarders Pvt. Ltd.), Noticee No. O4 (Shri Navneet Kumar), Noticee No.

SCN: DRI/ KZU/CF/INT-75/PI. Sri Ram/4640 dtd 4.72.77 Page 69 of 145

44.1.3. Noticee Nos. 4, 5 & 6 through their common authorlsedrepresentative Shri Rajnish Kalawatia, Advocate had requested for supply ofauthenticated copy of Cal! Data Records during Personal Hearing conducted beforeme in the matter of DRI SCN No. DRI/KZUICFIENQ-50/PI. Surya Intl. dtd 2.t2.t7against M/s. Surya International and Ors., which has relevance in the instant case aswell. The requested documents which were not part of RUD had been sought fromDRI offices. Vide letter dated 11.03.2O22 and vide email dated 14.03.2022, theNoticee Nos.4,5 & 6 through their authorised representative were providedopportunity for inspection of the CDR on 17.03.2022 at 12.30 p.m. but they failed toavail the same. Moreover, digitised version of CDR had been duly forwarded to theNoticee Nos.4,5 & 6 via their authorised legal representative vide email dated23.O3.2022.

-.:' 4 !3i 35'rr aqi I .5-

,,,,ror"l]'l"ico i'{,r,e..

F.No. S33 23l2C17 ADiN (A&A)O5 (Shri Vikki Kumar), Noticee No. 06 (Shri Pranabananda Bala), Noticee No. 07(Md. Nasiruddin), Noticee No. 10 (Shri Aloke Ghosh) and Noticee No. 11 (ShriSajal Das) have received the PH intimation letters well before the scheduled PH datewithin the meaning under section 153 (3) of Customs Act, 1962 and copy of thepersonal hearing intimation letters have also been uploaded on the official website of

j//www. koll<atacustoms.qovthe Kolkata Customs at hIlp . in/ in compliance withsection 153 (1)(e) of the Customs Act, 1962

44.4, In the judgement of the Hon'ble Supreme Court in case of M/s Giani RamFoam Industries vs. Commissioner [2OO5 (18O) E.L.T. A94 (S,C.)], theHon'ble Court held that there is no violation of Principles of Natural Justice when thedelay is due to inaction of appellant. While dismissing the appeal of the party, theHon'ble Court upheld the judgment of Tribunal. The Appellate Tribunal in itsimpugned order had held "........fhat there was delay in adjudication..., certificaterequired to be produced by appellant before Commissioner... .. Letters to appellantintimating date of hearing having been received back undelivered, Range Supdt.directed to deliver letter at residence of one of the appellants. Delay being causeddue to inaction of appellant, the Principles of Natural lustice were not violated".

44.5. In the case of Assistant Commissioner, Commercial Tax Department VsM/s Shukla & Brothers [2O1O (254) E.L.T 6 (S,C.)],the Hon'ble Supreme Courtheld that Principles of Natural .lustice have twin ingredients, namely (i) person, likelyto be adversely affected by action of authorities is to be given notice to show causeand (ii) opportunity of hearing. It has been further observed by the Hon'ble Courtthat violation of either of them, in the given facts and circumstances of a case,vitlates the order itself. Whereas I flnd that in the subject case, both the ingredientslaid down by the Apex Court have been satisfied.

44,6. In the case of Uma Nath Pandey vs State of U.P. [2OO9(237) E.L.T241(S.C.)1, the Hon'ble Supreme Court held that there are two rules of Principles ofNatural Justice. First rule is 'nemo judex in causa sua' meaning 'no man shall be ajudge in his own cause'and second rule of natural justice is'audi alteram partem',meaning no one should be condemned unheard. It is observed by the Hon'ble Courtthat notice is first limb of this principle, notice must be precise and unambiguous andit is essential that party is put on notice before passing adverse order against him.Second limb is time given should be adequate so as to enable party to makerepresentation.

44.6.L. in the instant case, it is undisputed that not only the proper ShowCause Notice was issued to all the Noticees but also reasonable opportunities tobe heard were granted to them to defend themselves. In these circumstances, it isestablished that Principles of Natural Justice have been comprehensively anddemonstratively complied, Thus, it is clear that the requirements of the Section124 of Customs Act, 1962 have been fulfilled.

45. I have carefully gone through the case records. It has been alleged in theShow Cause Notice dated O4.t2.2O17 that as to why:

45.1. The said 6 pieces of wrist watches marked as EMPORIO ARMANI, havingseizure value of Rs. L,L2,374l- together with Wrist Watches of brands BURBERRY,CARRERA, CARTIER, GUCCI, LONGiNES, MICHAEL KORS MONT BLANC, OMEGA,PATEK PHILLIPE, PIAGET, RADO, ROLEX, TISSOT having seizure value of Rs.3,L5,L3,918/ - and the High Value branded mobile phones, Branded Earphones,Branded headphones and branded mobile covers etc. together valued at Rs.4,73,89,L391- imported under cover of Bill of Entry No. 9948788 dated

SCN: DRI/ KzU/CF/INT-75/Pt. Sri Ram/4640 dtd 4.72.77 Page 70 of 145

F.No.5ll 2 3/2017 ADI\ (A&A)

03.06.2017 end 2952 pairs of NIKE shoes having seizure value of RsL,26,32,4OO/ - and 1OO8 pairs of ADIDAS shoes having seizure value of Rs69,12,000/- imported under cover of the Bill of Entry No. 99488O4 dated(J3,06.2017 and the Motherboards, Speakers, logic cards and other accessories forbranded televisions imported under cover of the Air Way Bill No. 21715543404dated 05.06.2O17 having a total seizure value of Rs 6,55,957 / - should not beconfiscated under Sections 111(d), 111(f), 111(i), 111(1) & 111(m) and Section119 of the Customs Act,1962 read with Rule 6 of IPR Rules, 2OO7 on the groundsdiscussed in the Show Cause Notice.

45.2. Out of the said seized goods, 6 pieces of wrist watches marked asEMPORIO ARMANI, having seizure value of Rs. L,12,3741- and 2952 pairs ofNIKE shoes having seizure value of Rs L,26,32,4OOI- and 1OO8 pairs ofADIDAS shoes having seizure value of Rs 69,12,OOO/- should not bedestroyed in terms of Rule 11 (1) of the IPR Rules, 2OO7 on the grounds asdiscussed in the Show Cause Notice.

45,3. Penalty under Section 712(a), Section 112(b) and Section 114AA of theCustoms Act, 1962 should not be imposed on each of them on the grounds asdiscussed in the Show Cause Notice.

46. Before discussing the allegations levelled in the impugned Show Cause Noticevis-a-vis the submissions of the Noticees, it is imperative to mention here thatNoticee No. 02. i.e. Shri Shahansha Mallik alias Badshah, Noticee No. 04. i.e. ShriNavneet Kumar, Noticee No. 05. i,e, Shri Vikki Kumar, Noticee No. 06. i.e. ShriPranabananda Bala, Noticee No, 07. i.e. Shri Nasiruddin, Noticee No. O9. ShriArnab Sinha & Noticee No. 10. Shri Aloke Ghosh have contested that theirstatements were taken by DRI under coercion and threat.

46.L.L, Noticee No. O2. i.e. Shri Shahansha Mallik alias Badshah, Noticee No.04. i,e. Shri Navneet Kumar, Noticee No, O5, i.e. Shri Vikki Kumar, Noticee No.06. i.e. Shri Pranabananda Bala, Noticee No. 07. i.e. Shri Nasiruddin, Noticee No.O9. Shri Arnab Sinha & Noticee No. 10. Shri Aloke Ghosh have working knowledgeof English (the script and language in which the voluntary statements have beenrecorded) which is evident from their written submission(s) which are in English aswell. Also Noticee Nos. 04, 05 & 06 being officers of Customs and Noticee No. 10.being a Customs Broker are well conversant with the provisions of the Customs Act,1962 wherein it has been explicitly made clear that statement u/s 108 of the Act,ibid is voluntary and they were at liberty to not endorse the typed statements orhand written statements if the same had been taken under coercion as alleged. AlsoI find that Noticee No. t had retracted his statement vide letter dated 19.02.2018,months after recording the same before DRI officers which appears to be nothingmore than an afterthought.

: ,,

Also I don't find mention of ant specific details of how the Noticees haVe., ,.'d, threatened by DRI officers during recording of voluntary statemerrts., 'r.-

,i

46.L.2.been coerce

SCN: DRI/ KzU /CF/INT-75/PI. Sri Ram/4640 dtd 4.72.77 Page 7 7 of t45 t.

46,1. | find that the said Noticees had admitted in their statements that they hadgiven statement(s) voluntarily and without any inducement, threat, and coercion orby any improper means. Further, the said Noticees have also certified in theirstatements that they had read the statement(s) and found it to be correct. Thesubmission of the said Noticees that the statement(s) was given underth reat/pressu reld u ress is obviously an afterthought and strategy to mislead ordelude the entire process.

F.No. s33- 2312017 ADJN (A&A)

No Noticee has adduced his claim of any physical harm allegedly inflicted by the DRIofficers with copy of any medical report on the date of voluntary submission.

46.2. Therefore, I do not find any force in the contention of the said Noticees in thisregard. It is on record that the said Noticees had tendered their statement(s)voluntarily under Section 108 of the Customs Act, 1962. I find that the statementrecorded under Section 108 of the Customs Act, 1962 has evidentiary value underthe provisions of law.

46.2.L. I find that the Hon'ble Supreme Court in the case of Surjeet SinghChhabra Vs. U.O.L [reported in 7997 (89) E.L.T. 646 (5.C.)] held that evidence- confession statement made before Customs officer, though retracted within sixdays, is an admission and binding, since Customs Officers are not Police Officersunder Section 108 of the Customs Act and FERA.

46.2,2, The Hon'ble Supreme Court, in the case of Naresh J. Sukhawani v.Union of India reported in 1996 (83) E.L.T. 258, also held that the statementrecorded under Section 108 of the Customs Act, 1962 made before the Customsofficials, is not a statement recorded under Section 161 of Cr.P.C. Therefore, it is amaterial piece of evidence collected by the Customs officials under Section 108 of theCustoms Act, 1962 and it can be used as substantive evidence connecting thepetitioners with the contravention of Customs Act.

46.2,3, The Hon'ble Supreme Court in another matter of Gulam HussainShaikh Chougule Versus S. Reynolds, Supdt. of Cus., Marmagoa [reported in2OO1(134) ELT 3 (SC)1, has categorically held that "statement recorded byCustoms Officers under Section 108 of the Customs Act is admissible in evidence.The Court has to test whether the inculpating portions were made voluntarily orwhether it is vitiated on account of any of the premises envisaged in Section 24 ofthe Evidence Act.... "

46.2.4. Apex Court in the case of Percy Rustomji Basta Versus the State ofMaharashtra [1983 (O13) ELT L443 (S.C.), a case in which the appellant wasconvicted under Section 135 of the Customs Act and 120-B of the IPC, consideredthe question whether Section 24 of the Evidence Act was a bar to the admissibility ofa statement given by the accused of offences under the Customs Act. This Courtrepelled the contention based on Section 24 of the Evidence Act and the facts.

46.2.5. It was again followed in Veera Ibrahim versus the State ofMaharashtra 1983 (O13) ELT 1590 (S.C.). The Hon'ble Apex Court in the case ofBadaku Joti Svant versus State of Mysore reported at 1978 (2) ELT J 323(SC) held as,

"In this yiew of the matter the statement made by lhe appellant to the Deputy Superintendent of Customs

and Excise would not be hit by Section 25 of the Evidence Act and would be adntissible in evidence unlessthe oppellant can Iake advantage of Section 21 of the Evidence Act. As to thqt it v'as urged on behalf of theappellant in the High Court that the confessional statement vas obloined by threats. This was not accepledby the High Court and therefore, Section 24 of the Eyidence Acl has no application in the present case. Il isnot disputed thot d this statement is admissible, the conviction of the appellant is correct- As we have heldthat a Central Excise Officer is not a Police fficer wilhin the nteaning of those words in Section 25 of theEvidence Ac4 the appellant's stotement is admissible. It is not ruled out by onylhing in Section 21 of the

Evidence Acl and so the appellanfs conviction is coffecl and the appeal musl be dismissed. "

47. Before proceeding further, it is also imperative to mention that some of theNoticees have also requested for cross-examination of Additional Director General

*'.a"Sr ot'-.i.l,o.)."""?SCN: DRI/ KzU /CF/INT-7'/ Pt. Sri Ram/4640 dtd 4.72.77 Page 72 of 145

F.No.533- 2 3/2017 ADIN {A&A)of DRI, lnvestigating Officer of DRI, Panchas involved in the seizure/ search warrantexecutions, Co-Noticees of the subject Show Cause Notice, etc.

47.1. I observe that the Notlcees have invoked section l38B of the Customs Act,1962 in the request for cross-exa m in ation of the Additional Director General of DRI,investigating Officer of DRI, Panchas involved in the seizure/ search warrantexecutions & Co-Noticees of the subject Show Cause Notice.

47.L.1, In this regard, I have gone through the provision of Section 1388 of theCustoms Act, 1962 which reads:

Scttion 1388. Reletmttcl' ol stule trrctrls under certuin L'ircun$lontes. -

(l) A slotenent nrude and signed b),a person before any go.elled officer of cusbnts durhg the course ofany inquiry- or proceeding under lhis Acl shall be relevont, for the purpose ofprot,ing, in any prosecution

for on olfence under lhis Acl, the truth ofthe facts h,hich il contuins, -

(a) w,hen lhe person u,ho ntade lhe slatenrcnl is dead or cannot be found, or is incopable of git'ing etidence.or is kept out oflhe u,at, by lhe ctdverse pafiy, or u,hose presence cttnnol be obtoined wilhoul en ctntotmt ofdeloy or expense vhich, under lhe circumstonces of the case, lhe Courl considers unreasonable: or

(b) u,hen the person who ntade lhe slotemenl is examined as a witness in tlte case before the Court and theCourt is oJ opinion thal. having regord to lhe circumstonces of the cose, lhe slalenlenl should be admilledin evidence in the interests oJjustice.

47.L.2, Section 13BB only deals with those persons whose statements havebeen made and signed by a person before any gazetted officer of Customs during thecourse of any enquiry or proceeding under this Act, ibid. As no statement has beenmade by the Additional Director General of DRI and Investigating Officer of DRIunder section 108 of the Act, ibid which has been placed as evidence before me, Icannot allow the same to be examined under section 138B of the Customs Act, 1962.

(i) N.S. MAHESH Versus COMMISSIONER OF CUSTOMS, COCHIN, 2016 (331)E.L.T. 402 (Ker.) W.P. (C) No. 34057 ol 2015 (F), decided on 11-11-2015

In this case, Petitioner has sought cross-exa m inatio n of all officers who assessed,audited and examined import consignment. However adjudicating authority hasdenied the request on ground that no statement of said officers was relied inshow cause notice as SCN was issued on basis of documents only andfurther that no specific reasons was given for cross-examination duringadjudication. Therefore denial of cross-exa m ination of departmental officers wasupheld and also held that there is no inflrmity in reasoned order of adjudicatingauthority.

(ii) JSW STEELS LTD. Versus COMMISSIONER OF C. EX., BELGAUM, 2O1O(2s4) E.L.r. 318 (Tri. - Bang.)

In this case JSW Steels argued that by not allowing them to cross examine aSuperintendent of Central Excise, Shri Victor lames, they suffered prejudice. It isalleged that proceedings were therefore vitiated by failure to comply with Principles

SCN: DRI/ KZU/CF/INT-75/ Pt. Sri Ram/464O dtd 4.72.77 Page 73 of 145

(2) The provisions of sub-section (1) sholl, so for as may be, qply in relalion to uny proceeding underlhis Acl, other than a proceeding before o Courl, as lhey apply in relulion lo a ptoceeding beJbre a Court.l

In this regard, I place reliance on

F.No. s33 2312017 ADIN (A&A)

of Natural lustice. However, the Court did not flnd any substance in this plea. Itwas held that the Commissioner adjudicated the classification dispute on the basls ofrelevant facts ascertained from the assessee. Further, it was held that denial ofcross-exa m ination of departmental officer has not violated Natural Justice as suchofficers do not contribute to judicial determination of classification Natural justiceIpara 9 of the judgement ]

47.1,3. with regard to the request for the cross-examination of the co-Noticeesand Panchas, I observe that Section 1388 appears under the Chapter XVI whichdeals with offences and prosecution. When a prosecution of any offencecommitted under the Customs Act,1962 is launched, the provlsions of Section 13BBof the Act of 1962 gets attracted.

47.1.4. Adjudication Procedure of offence under the Customs Act, 1962 hasbeen laid down in section 122A under Chapter XIII of the Act, ibid which reads:

Section 122A. Adjutlication Procedure. -

(l) The adjudicatfug authoritv shall, in any proceeding under this Chapler or anv other provision oJ thisAcl, give on opporlanily of being he td to a panra in o proceeding, dlhe par4t ss 1lg517ss.

(2) The adjudicoting authority may, if suficient cuuse is shown al any stage of proceeding referred to ittsub-section (l), gront time, from lime to time, Io the pofiies or any of thent and adjourn the hearing forreosons lo be recorded in w tit g:

Provided thal no such adioumntenl shall be gronled ntore than lhree times lo o porty during the proceeding.

47,L.5. Chapter XIII of the Act, ibid deals with searches, seizures and arrest.Adjudication under the Customs Act, 1962 as laid down under Section 122(jurisdiction) and t22A (procedure) of the Act, ibid is a quasi-judicial process.

47,L.6. The distinction between a judicial and a quasi judicial process has beenclarified in the case of The Bharat Bank Ltd,, Delhi vs Employees Of The BharatBank, 1950 SCR 459; (AIR 1950 SC 188), wherein the Hon'ble Apex Court hasmentioned, inter-alia, that:

The other .fundamental test which distinguishes a judicial from a quasi-judicial orodministralive body is that the former decides conlroversies according lo Iayt, hthile the latleris nol bound strictly to follow the law for its decision. The investigation of .facls on evidenceadduced by the parties may be a common feoture in both judiciol and quasi-judicial n'ibunals,but the dilference between the two lies in the .fact that in a judicial proceeding the Judge has gotto apply to the focts found, the law oJ the land v,hich is fixed and uniform. Tlte quasi-jutlicialtribunal on the otlrer hand gives its decision on the differences between the parties not inaccordance with fixed rules of law but on principles of administrative policy or convenienceor what appears to be jusl and proper in the circumstances of a porliculor case.

47.L.6.1, It is on this principle that Natural Justice ensures that both sides shouldbe heard fairly and reasonably. A part of this principle is that if any reliance is placedon evidence or record against a person, then that evidence or record must be placedbefore him for his information, to comment and criticism. That is all is meant by thedoctrine above quoted. No natural justice requires that there should be a kind offormal cross-examination. Formal cross-exa m ination is procedural justice. It isgoverned by Rules of Evidence. It is the creation of Courts and not a part of naturaljustice but of legal and statutory justice. It is agreed that Natural Justice certainlyincludes that any statement oF a person before it is accepted against somebody else,

'CN: DRI/ KzU /CF/INT-7' / Pt. Sri Ram/464O dtd 4.72.77 Page74 of 145

?\\%i,rr

.-.:{.i

.""t'z'

F.No. 533- 2312017 ADIN (A&A)that somebody else shou d have an opportunity of meeting it whether it is by way ofinterrogatlon or by way of comment, does not matter. So long as the party chargedhas a fair and reasonable opportunity, to see, comment, and criticise the evidence,statement or record on which the charge has been made against him, the demandsand test of natural justice are satisfied. Cross-examination in that sense is not thetechnical cross-exa m ination in a Court of Law in the Witness Box. (KishanlalAgarwal v. Collector of Land Customs, AIR 1967 Cat. 80 at page 87)

47.L.6,2. In this regard, I find that the Show Cause Notice along with RUDS inelectronic format were duly issued to the respective Noticees on 04.72.2077.SuFficient time has been given to the Noticees to study, analyse and comment on thecharges levelled. Hence the request for cross-examination of the Additional DirectorGeneral of DRI, Investigating Officer of DRi, Panchas involved in the seizure/ searchwarrant executions & Co-Noticees of the subject Show Cause Notice has not beenentertained.

47,L,7. Vide following case laws it was held that denial of cross examinationdoes not lead to violation of Principles of Natural Justice,

II. Kumar Jagdish Ch. Sinha v. Collector - 2OOO (124) E.L.T. 118 (Cal H.C.):- In this case it has been held that the right to confront witnesses is not an essentialrequirement of natural justlce where the statute is sllent and the assessee has beenoffered an opportunity to explain allegations made against him.

III. A.K. Hanbeen Motarred vs. Collector - 2OOO (125) E.L.T. 173 (Mad HC):wherein it has been held that the strict rule of burden of proof applicable to criminalprosecution may not be applicable to proceedings before Customs authorities.

IV. Shivom Ply N-Wood Pvt. Ltd. Vs Commissioner of Customs & CentralExcise Aurangabad- 2OO4(L77) E.L.T 1150(Tri. -Mumbai): - wherein it hasbeen held that cross-exa m ination not to be claimed as a matter of rlght

47.L.a. In addition to the above, denial of request for cross-exa m ination hasbeen held as not violating the Principles of Natural Justice during quasi-judicialproceedings in following case laws;

I. In the case of Kanungo & Co. Vs. Collector of Customs, Calcutta & Others[1993(13) E.L.T. 14a6 (s.c.)], wherein it was unequivocally held that forproceedings under Customs Act, the right to compliance to the Principles of NaturalJustice does not cover the right to cross examination witnesses. Relevant Para 12 isreproduced wherein the Hon'ble Supreme Court observed as follows -

It is a settled position that proceedings before the quasi-judicial authority isnot at the same footing as proceedings before a Court of law and it is thediscretion of the authority whether request of cross examlnation to be allowed inthe interest of natural justice. The following case-laws are relevant and supportsthe above view.

L Poddar Tyres (Pvt) Ltd. v. Commissioner - 2OOO (126) E.L.T. 737t -Wherein lt has been held that cross-exa m in ation not a part of natural justice but onlythat of procedural justice and not a'sine qua non'.

"In our opinion, the Principles of Natural Justice do not require thst in matters like this the persons whei . ';tlhave given information should be examined in the presence of the appellant or should be allowed 19

"ha "' "'.. .'

') -' 'r' '' 'i ,

,1-i ;-;,,. ,i ;,SCN: DRI/KZU/CF/INT-75/PI. Sri Ram/464O dtd 4.72.77 Page 75 ofI43 ,,,, o 'l

:omri1

ts\-(\u rincl h.\'tltctt,nt tltt:.\tt cnk't1t.\ uula hclitt-ttc is rto fortt in lhc lhinl crnlet ion of tlp tqrytclhtt.

F. No. S33- 2312017 ADJN (A&A)

tlrc ('ustrnr .ltthoritic.t. .ltconlingh. I lttld tltt

II. In the case of Suman Silk Mills Pvt. Ltd. Vs. Commissioner of Customs &C.Ex., Baroda l2OO2 (142) E.L.T. 64O (Tri.-Mumbai)1, Tribunal observed atPara 17 that-

.Jtrsticc vhere r|i/iic.r.rc.r not ('ross-exumin(d v'hctt ,sk entenl.s odntillirtg eru.siort vcre uttfa.ssiorrul.

'' h a quusi-judicial proceeding, strict rules of evidence need nol lo be followed. Cross erantination cannotbe clainrcd as a nruller oj right. "

IV. In the case of Patel Engg, Ltd. vs UOI reported in 2O14 (3O7) ELT 862(Bom.) Hon'ble Bombay High Court has held that;

"Adjudication Cross-eruminalion Denial of- held does not onnunl lo violation oJ Principles of NaturalJustice in eyery cose, insteod il depends on the particular facts ond circumslLttrces - Thus, right of cross-eramination conrutt be asserled in all inquiries and which rule or Principles of Natural Justice musl be

followed depends upon severol factors Further, even if cross-exantinalion is denied. by such deniol alone,it cannot be concluded that Principles of Natural Juslice had been violated." [paro 23]

V. Hon'ble Punjab and Haryana High Court in its decision in the case of Azad EnggWorks v/s Commissioner of Customs and central Excise, reported as2006(2002) ELT 423, held that;

".......... h is well settled lhat no rigid rule can be luid down as lo when Principles of Natural Justice applyond what is their scope and exlent. The said rule contains principles offair play. Interference with an orderon lhis ground connot be mechanical. Court has lo see prejudice caused lo the affecled porty. Referencentay be made to judgment of Hon'ble the Suprente Courl in K.L. Tripathi v. Stote Bonk of India and others,

AIR 1981 SC 273"

VI. Hon'ble Tribunal in the case of P Pratap Rao Sait v/s Commissioner ofCustoms repofted as 1988 (33) ELT (Tri) has held in Para 5 that:

".......... The plea of the learnt counsel that the appellant was not permitted to cross-examine the fficerand that would vitiate the impugned order on grounds of noluraljustice is not legally tenable.

VII. Similarly in A.L Jalauddin v/s Enforcement Director reported as 2010(261)ELT 84 (l\4ad HC) the Hon High Court held that ;

47.1,9. I observe that statements recorded under Section 108 of the CustomsAct are voluntary and confessional in nature, therefore denial of cross examinationdoes not violate Principles of Natural Justice

47.L.9.L. Request for cross-exa mi nationvoluntary statements during investigationfollowing case laws;

Noticee whonot acceptable

has madein view of

SCN: DRI / KzU /cF/ INT-75/ Pt. Sri Ram/464O dtd 4.72.77

ofis

Page76of145

III. In the case of commissioner of Customs, Hyderabad V. Tallaja Impexreported in 2OL2(279) ELT 433 (Tri.), it was held that-

".... Therefore, we do not agree thot the Principles of Natural Justice hsve been violated by not ollowingthe appellant to cross-examine lhese firo persons. We may refer lo lhe parograph in AIR 1972 SC 2136 :1983 (13) E.L.T. 1186 (5.C.) (Kanungo & Co. v. Collector, Customs, Calcutta) "

F.No.533- 2312017 ADJN (A&A)I. In the case of Surjeet Singh Chhabra v. UOI, reported in646 (S.C.)1, it was held that-

1997 (89) E.L.T.

II. In the case of Jagdish Shanker Trivedi Vs. Commissioner of Customs,Kanpur [2006 (194) E,L.T. 29O (Tri.-Del.)], Tribunal observed at para 7.2

"Crnfassional slalenet s (t noticee Retroction thereoJ, u,hich y,as othent,ise uruct.eptable. y,oultl nolentille them lo claim cross-exuminotion ofu'itnesses on aspects v,hich v,era confessed by them There is noviolation ofnttlural .iustice principles in such a course... "

III. Hon'ble Delhi Tribunal in the case of Onida Saka Ltd. v/s Commissioner ofCentral Excise, Noida [2011 (267) E.L.f , 1O1 (Tri.Del)] in para 4 of its orderheld th at

since the statements of the persons whose cross-exa m ination has beensought, has not been retracted, there was no necessity for permitting their cross-examination"

47,l.LO. I find that Cross Examination sought without indicating specificreason is not admissible, when request for cross-exa m ination is made by Noticeewithout indicating specific reason, in view of following case laws:

I. In the case of Fortune Impex Vs. Commissioner of Customs, Calcutta[2OO1(138) E.L.T.556 (Tri. -Kolkata)], Hon'ble Tribunal observed at Para 12 that:

"...it is not required thal in each and every case, cross-examination should necessarily be allowed. There isno absolule righl of cross-exantination provided in the Cusloms Acl. The Adyocate had given a list oJ 26persons for cross-exomination without indicating lhe specifc reosons for cross-examining the...it cannot besaid lhat there was violation of Principles rf Natural Justice by not ollowing the cross-exanination of thepersons soughl by him." This view taken by the Tribunal has been affrrmed by Hon'ble Supreme Court2004 (161) E.L.r. 1(5.C.) A 2001 (167) E.L.T.A. 131 (5.C.).

II. Hon'ble CESTAT Kolkata in its decision in Dipu Das v/s Commissioner ofCustoms Kolkata reported as 2010(261) ELT 4O8 (Tri-Del), has held that;

47.L.LL. Finally Section 138 B(2) or in any other provisions of the CustomsAct/law has not such explicit arrangement for examinatlon-in-chief, crossexamination and re-examination. Further, it is also not mentioned in the Section1388(2) that this provisions is subject to the Evidence Act. Also, provisions ofSection 138 B(2) , lbid reads "The provisions of sub-section (1) shall, so far as maybe, apply in relation to any proceeding under this Act, other than a proceedingbefore a Court, as they apply in relation to a proceeding before a Court", whichconfirms it is not mandatory in nature for all cases.

47.t.12. The instant case is not merely based on the statements of any otherpersons but also statement of the Noticees themselves, who have sought Cross-examination of other persons. Thus, I find that Cross-examination, sought by the

SCNi DRI/KZU/CF/INT-75/PI. Sri Ram/464O dtd 4.72.77

'( tt.\lottts Ollitiul.s urr: ttot ?t)lirc olfit'cr; unl udttis.riort nrufu ht,fore tlrnt tlutrglt retru(tc(l hinl5 tltc

notlting stn'facetl tlrut thc vilner:;e.\ hutl un.r cnnii' rt,ith upltellams. thosc y'ere not liuble to ha tliscurtlctlnor reqttiretl lo he pfi to tntss-etonlinuliut. '

"...............1n adjudication proceedingq cross-examination cannot be claimed as amatter of right on mere asking for it, without furnishing reasons for the same".

Page 77 of L45

F.No. s33- 2312017 ADIN 1A&A)Noticees, is without any merit and a ploy to delay the adjudication proceedings. Inthese circumstances, I am not inclined to allow cross-exa m inatio n sought by theNoticees and considering the facts and circumstances of the case, such denial cannotlead to violation of Principles of Natural Justice.

47,1,13. In the instant matter, I find that sufficient evidences exist and also theNoticees have not established that their statement(s) were not voluntary and weregiven under duress or are factually wrong or they had any malice towards the Co-Noticees. In view of the above judicial pronouncements, I hold that Cross-examination cannot be demanded as a matter of right by the Noticees. I also findthat no cogent reason(s) were adduced to demand and justify Cross-exa m ination andthat not affording Cross-exa m inatio n to the Noticees, does not vitiate the proceedingon ground of denial of natural justice.

48. I observe that Noticee Nos. 02, 04, 05 & O6 have stated during theirrespective Personal Hearings that final defence reply will be provided after crossexamination oF Co-Noticees and/or Panchas and/or Offlcers of DRI.

48.1. From the perusal of entire Customs law, it is observed that no suchstipulations has been provided whereby Noticee can put such condition beforeAdjudicating Authority. Grant of cross-examination is the discretion ofAdjudicating Authority so that it does not cause absolute mis-carriage of justiceand Principles of Natural Justice may be substantially complied with.

48.2, Further, as far as the existence of legal provisions are concerned, it isobserved that as per Section l2a@) of the Customs Act, which deals with- issue ofShow Cause Notice before confiscation of goods, etc., Noticee is required to submithis reply as he is bounded by the said provision. Section 124(b) reads as under;

SECTION 124. Issue of show couse nolice beforc conliscolion of gootls, etc. - No order confiscatingany goods or imposing any penally on any person shall be made under lhis Chapter unless the owner of thegoods or such person

(a) ... ... ... ... ... ... ... ... ... ....(b) is given an opportmity of making a representation in writing within such reasonable time as moy bespecifed in the notice against the grounds ofconfiscation or imposilion ofpenalty mentioned lherein; and(c) ...... . .. ..

48.3. Bare perusal of Section 124 indicates that it has ingredients of Princlples ofNatural Justice, but it has no such condition which says that only after crossexamination written reply would be filed. Neither Section 122 of the Customs Actwhich deals with adjudication nor Section 1-22A of the Customs Act dealing withadjudication procedure thereof says anything that reply would be filed only aftergrant of opportunity of cross examination during adjudication proceedings. Followingcase laws supports the aforesaid view.

I. Hon'ble High Court Allahabad in the case of KANPUR CIGARETTES LTD. VersusUNION OF INDIA as reported in 2O16 (344) E.L.T. 82 (All.) [Civil Misc. WritPetition (Tax) No. 6 of 2073, decided on 15-1-20131 has held that "rlzere is no right,procedurully or subslanlirely or in contplicntce with notural justice and fair play, lo nnke available theu,ilnesses u'hose stolenent.\ were recorded, for cross-axaminalion before lhe reply lo lhe shov,couse noliceis f led" .

It also hefd that "the petitioner cannot insist that the petitioner be.first pemilled lo cross-examine. theu,itnesses and thereafter it u,ould submit its reply" ,

!'Er;ic\ -i.SCN: DRI/ KzU /CF/INT-7,/ Pt. Sri Ram/4640 dtd 4.72.77 Page 78 of 145

F.No. 533 2312017 AD]N (A&A)

rr. Tribunal of Delhi in the case of MrRAJ pRoDucrs pvr. LTD. versus coMMR.OF C. EX. & SERVICE TAX, UDAIPUR reported in 2019 (369) E.L.T. tt47 (fri. _Del.) [Final Order No. A/52948/2OLB-EX( DB), dated 13-9-2018 in Apptication No.E/I4ISC/5O757 /2018 in Appeal No. t/57867 /2O18-DB] in para 14 hetd as under:

stugc of .filirry repl.t to the Shou, ('ause Notita. Neilher sl.tltlotf' nor ent Princil es of Nuntrul .lusticerequit"envnl {dsls fttr ullotring cross-extnitution ot o stuge ofreceiting the nere Shotr Cuuse Notite.

III. In another case, Hon'ble High Court Madras in the case of KIBS HOISERYMILLS P, LTD. Versus SPL. DIR., DTE. OF ENFORCEMENT, NEW DELHI [W.p.No. 18857 of 2010, decided on 9-12-2074), reported in 2016 (344) E.L.T. 2a (Mad.)has held that ",\'olrt cc v'ere botoul lo suh tit lhair raply to :hott c'uuse nolice. follott proccclurcctntcntplutcd ntdcr Acl/'Rules. otd coultl not dct'itc llrcir ott'n Ttroc'edLu'c tt.s lter lhcir v.hint.s etttd f nt,ie s" .

49, Now, I proceed to discuss the issues on merits. The main issues involved inthe instant case are, inter-alia, as under:-i.) Whether the import(s) could be considered as genuine import or not, imported bya genuine company (Noticee No.1. i.e., M/s. Sushil Kumar Singh [IEC02060164171) and whether the Proprietor registered against the company asmentioned above is the actual owner of the imported goods or nou

iii,) Whether the declared value(s) ofa) Rs, 4,33,6O3/- (Rupees Four Lakh Thirty Three Thousand Six Hundred andThree only) of the consignment imported vide Bill of Entry no. 9948788 dated03.06,2017 said to contain Mobile Accessories/ Hands Free/ Tempered Glass/Housing/ LCD, etc. imported under the IEC of M/s. Sushil Kumar Singh in 153packages having declared weight of 3OO5 Kg;

b) Rs. 5t53,O431- (Rupees Five Lakh Fifty Three Thousand and Forty Three only)of the consignment imported vide Bill of Entry No, 9948804 dated 03.06,2017,said to contain Shoes imported impofted under the IEC of M/s. Sushil Kumar Singhin 110 packages having declared Gross weight of 1861 Kg;

can be accepted as the genuine value for the purpose of valuation of the impugnedgoods under Section 14 of Customs Act, 1962 or not, and for that matter,

iv.) whether the declared value is liable to be rejected in terms of Section 14 of theCustoms Act, 1962 read with Rule 12 of the Custom Valuation (Determination ofValue of Imported Goods) Rules, 2007 and should be re-determined as

a) Rs.7,9O,15,431l-( Rupees Seven Crore Ninety lakh Fifteen thousand Fourhundred and Thirty One only) of the conslgnment imported vide Bill of Entry no.9948788 dated 03.06.2017;

SCN: DRI/ KZU /CF/ INT-75/ Pt. Sri Ram/4640 dtd 4,72.77

ii.) Whether the description of the goods declared in the two respective Bills of Entry9948788 and 9948804 both dated O3/O6/20L7 and one Air Way Bill No.27715543404 dated 05/06/2017 are factually correct or not;

b) Rs.1,95,44,4OO/-( Rupees One Crore Ninety Five lakh Forty Four thousand Fourhundred only) of the consignment imported vide Bill of Entry no. 99488O4dated O3.o6.2O17;

PaBe 79 of 145

F.No. S33- 2312017 AD]N (A&A)Valuation (Determination of Value ofas per relevant provisions of the Custom

Imported Goods) Ru les, 2007.

v.) whether the 6 pieces of wrist watches marked as Etr4poRlo ARN4ANI importedunder cover of Bill of Entry No. 99487a8 dated 03.06.2017 and 2952 pairs of NIKEshoes and 1008 pairs of ADIDAS shoes imported under cover of the Bill of Entry No.9948804 dated 03.06.2017 under the IEC of M/s Sushil Kumar Singh have beenimported in violation of the provisions of Intellectual propefty Rights (ImpoftedGoods) Enforcement Rules,2007 read with clauses (n) and (u) of sub- section (2) ofsection 11 of the customs Act, 1962 and should not be confiscated under section111(d), 111(f), 111(i), 111(l) and 111(m) of the Customs Act, 1962 and destroyedunder the provisions of Rule 11(1) of the IPR Rules, 2007.

vi.) whether the other items i.e. Wrist Watches of brands BURBERRY, CARRERA,CARTIER, GUCCI, LONGINES, MICHAEL KORS N4ONT BLANC, OMEGA, PATEKPHILLIPE PIAGET, RADO, ROLEX, TISSOT together with the High Value brandedmobile phones, Branded Earphones, Branded headphones, branded mobile covers,branded motherboards/ logic cards/ Accessories kit for branded television sets/speakers, etc. etc. as detailed in the Annexure to the notice imported by M/s SushilKumar Singh under Bills of Entry Nos. 9948788 and 9948804, both dated03106/2017 and Air Way Bill No. 21715543404 dared 05.06.2017 have beenimported in contravention of the provisions of Section a6 @) of the Customs Act,1962, Rule 11 and Rule 14 of the Foreign Trade (Regulation) Rules, 1993 and isprohibited within the meaning of Section 2(33) of the Customs Act, 1962 and areliable to confiscation under Section 111(d), 111(f), 111(i), 111(l) and 111(m) andSection 119 of the Customs Act, 1962.

vii,) Whether penalty under Section L72(a), Section 112(b) and Section 114AA ofthe Customs Act, 1962 should be imposed on each of the thirteen Noticees.

viii.) whether the Additional Director General of DRI, KZU is the competent authorityto issue the Show Cause Notice under the Customs Act.

50. From the IEC 0206016417 of M/s Sushil Kumar Singh registered with theDGFT, Shri Sushil Kumar Singh (Noticee No. 01), Proprietor Sri Ram Traders, 28,Jhill Road, Cossipur, Kolkata-700002 was found to be the Proprietor of M/s SushilKumar Singh (Noticee No. 01) with main Office at 28, lhill Road, Cossipur, Kolkata,W.B. 700002 & Branch Office(s) ati, Sri Ram Traders. Makan No. D 498, Gali No.4, Rajeev Colony, Old Kundali,

Delhi 110098;ii, Sri Ram Traders, 9,Old China Bazar Street, 3rd Floor, Room No.43, Kolkata,

w.8.700001;iii. Sri Ram Traders, 1/26, Ghosh Bagan Lane, Kolkata,W. B.700002

During the search carried out by the investigating Authority on 10.06.2017 in thedeclared main office of the IEC holder lt was observed that the premises wasactually an address of a single room apartment in a dilapidated condition. Onlythe wife of Shri Sushil Kumar Singh along with their sons were present.

':.Further, voluntary statements taken with regard to M/s Sushil Kumar Singh by ttigDRI, reveal that :.., '

': -', .\::,:

SCN: DRI/ KzU /CF/INT-7,/ Pt. Sri Ram/464o dtd 4.72.77 Page 80of 1S-5"','' .'

F \o S33 2.1/2C17 AD,\ (A&A)- r. 5ht S'tsn Kurar S ngh never r.ac ary off,ce. He hac o^ y one address Le. ai 28,

lhril Road, Cossipur, Koikata-7000c2, All the other addresses as mentionedin his IEC were false.

ii' He did not know how many rmports were done under his IEC since January 2017and how the payments were made for the imports. He had given his IEC toBadshah and Nasir Uddin and they could explain the same.

iii. The consignment under the BoE No. 99487a8 dated 03.06.2o17 was importedusing his IEC and these goods were actually imported by Badshah (NoticeeNo,2) and in the case of consignments imported under BoE No. 994ggo4dated 03.06.2017, the goods were actually brought by Navneet Kumar(Noticee No. 4)

iv. He also lent out his iEC to Arnab Sinha having office at N.s.Road in the name ofModern Freight and electronic Aoods like motherboard, TV, LED panelswere brought by Arnab Sinha under his IEC.

v. He further stated that sri Ram Traders had only one bank account at ramil NadMercantile Bank Limited, Kolkata which were hitherto maintained by one ShriRajendra Jain and one Shri Vedprakash Agarwal.

Considering the above, it gets established that the impugned goods wereimported by using the IEC issued in the name of M/s. Sushil Kumar Singh having ShriSushil Kumar Singh (Notrcee No. 01) as its Proprietor.

Therefore, I find that M/s. Sushil Kumar Singh was handled/ controlled/operated by some unscrupulous operatives to make fraudulent imports. Noticee No.1 could not produce any positive evidence in suppoft of his contention/lg no ra nce.

Therefore, I conclude that the said imports are not genuine importsmade by a bonafide importer and the Proprietor registered against thecompany as mentioned above is not the actual owner of the imported goods.Held so,

51. In respect of the allegation as to whether the description of the goods declaredin the two Bills of Entry and one Air Way Bill are correct or not, I intend to discussthem consignment wise.

51.1.1. I find that from the EDI system records, BoE No. 994B7BB had beenfiled by the CHA M/s. Sadguru Forwarders Pvt. Ltd on 03.06.2017, declaring thegoods as unbranded Mobile Accessories/ Hands Free/ Tempered Glass/Housing/LCDetc. in 153 packages.

51.1.2. However, on 100%0 examination of the consignment by DRI, KZUrecorded vide Panchanama proceedings dated 21.06.2017, it was observed that outof 153 packages only 82 packages contained unbranded Mobile Accessories/ HandsFree/ Tempered Glass/Housing/LcD. Branded goods like iPhone, headphones, WristWatches from reputed brands like Cartier, Burberry, Rolex. Gucci. Omega, etc. foundin the rest of the packages have been tabulated at Para 6.1,3.1, (Serial No. 1 to 23& 2s).

51.2. Consignment under BoE No.9948804 dated 03.06.2017:

51.2.1. I find that from the EDI system records, BoE No. 9948804 had beenfiled by the CHA M/s. Sadguru Forwarders Pvt. Ltd on 03.06.2017, declaring thegoods as unbranded shoes in 110 packages.

SCN: DRI/ KZU /CF/INT-7'/ Pt. Sri Ram/464O dtd 4.72.77 Page 81 of 145

51.1. Consignment under BoE No. 994B7aa dated 03.06.2017:

F.No. S33- 23l2c17 ADJN (A&A)

51,2,2. However, on 100o/o examination of the consignment by DRI, KZUrecorded vide Panchanama proceedlngs dated 22.06.2017, it was observed that allthe packages contained branded shoes (Nike & Adidas). Details have been tabulatedat Para 6.2,3.L.

51,3. Consignment under AWB No, 2L7155434(J4 dated O5,O6,2O17:

51.3.2, I find that no BoE had been filed for the subject consignment priorto the intervention of DRI, KZU on 05.06.2017.

51.3.3. However, on 1007o examination of the consignment by DRI, KZUrecorded vide Panchanama proceedings dated 2t.O7.2077, it was observed that thepackages contained branded television sets/speakers, etc. of reputedinternational brands goods like Sony, Samsung etc. found in the rest of the packageshave been tabulated at Para 6.3.3.1.

52. Thus, while most of the goods actually imported are branded goods, which arefurther certified by the respective Panchanamas drawn, the importer(s) hasdeliberately not mentioned the brand of the goods as well in some cases have notdisclosed the goods at all (like watches, Phones, etc.) which tantamounts to mis-declaration in the descrlption of the goods and hence, I hold that description of thesubject goods with respect to BoE Nos. 9948788 and 9948804 both dated03.06.2017 are incorrect.

52.1. With respect to the goods covered under AWB No. 21715543404 dated05.06.2017, I find that no BoE was filed by the importer under section 46 of theCustoms Act, 1962. Although, it can be extrapolated from the DRI examinationfindings of the previous two BoEs associated with the same importer that similarmodus operandi of misdeclaration would have been followed by the importer if notintercepted by the Investigating Authority. I draw this conclusion from the fact thatthe declarations of two BoEs under section 46 of the Act ibid are in conformity withtheir corresponding AWBS and invoices.

SCN: DRI/KZU/CF/INT-75/ Pt. Sri Ram/4640 dtd 4.72.77 Page 82 of 145

51.3.1. I observe that it was found from the Airports Authority of India in ACC,Kolkata that another consignment related to the Importer had landed at NSCBIAirport on 05.06.2077. On perusal of copy of AWB No. 21715543404 [copy 5 (forDestination Airport)l issued by Thai Airways, it was observed that the Shipper hadbeen shown as M/s. Zhenda Foreign Trade HK Ltd., Room 1506-1508, 15/F LawsCommercial Plaza, 788 Cheung Sha Wan Road, Kowloon, Hong Kong and theConsignee as well as Buyer had been shown as IV/s Sri Ram Traders, Makan No.D498, Gali No. 4, Rajeev Colony, Old Kundali, Delhi-110098. It was also learnt fromscrutiny of AWB that the concerned AWB was issued at Bangkok, Thailand on freightprepaid basis and showed the description of the goods as Electronic parts in 9packages.

Therefore, I conclude that the description of the goods declared in the tworespective Bills of Entry 9948788 and 9948804, both dated 03106 /2OL7 andone Air Way Bill No. 21715543404 dated 05l06l2OL7 are factually incorrect,Held so.

53. With respect to the valuation of the impugned goods, I find that there is a mis-declaration in the description of the imported goods, as discussed supra and, thereare reasonably sound doubts to accept the truth and accuracy of the declared valueof the impugned goods in the aforesaid 2 (two) Bills of Entry Nos.

F.No. S33- 2312017 ADIN (A&A)

53,1, Here, I rely on the order of the Hon,ble High Court of Kerala [2OO9(235)ELT 229(Ker)1, whereln it was held that-

".4&4ttion of trunsut't iott tulue nulcr Rulc I o/ th( Cu.\lt)nt.\ Iluluulion Rulcs ultplies utl, trhan thetrun:ia(liotl declurcd is Jbuncl to be ganuinc ontl correct. The lrunso(tion in tltis cttsc is pur.L.huse unclintport o/ )l:lS flut burs v'hereus in lhe dournrant.s ltresenled.fir clcurun<.e o/'gootls. the resp<tndant lernpd itas scrop ntelal. "

53.2. From thei. Air Way Bill No. 16083695684 dated 03.06.2017 and Invoice No. ZFT-

995/17-78 dated 01.06.2017 related to BoE No. 9948788 dated 03.06.2017;ii. Air Way Bill No. 17654035881 dated 03.06.2017 and Invoice No. ZFT-

998/77-L8 dated 30.05.2017 related to BoE No. 9948804 dated 03.06.2017;iii. Air Way Bill No. 21715543404 dated 05.06.2017; it has been observed that

53.2.1. The Shipper's name as well as Consignor's name in all the threeconsignments is M/s. Zhenda Foreign Trade HK Ltd and the concerned freightforwarder connected with all the three consignments is M/s. NAF Logistics private Ltd.

53.2.2. As per declaration u/s 46 of the Customs Act, 1962, M/s. Sushil KumarSingh has declared the supplier/ seller of the goods to be M/s. Zhenda Foreign TradeHK Ltd.

53.2.3. Vide voluntary statement of Shri Arnab Sinha, it is learnt that even thethe signature of Hertman Wong signing as authorized signatory of M/s. ZhendaForeign Trade HK Limited on the invoices and packing list for the subjectconsignments is false. The actual name is Hertman Kong. This person was known tohim as working in M/s TH Mason Logistics in Hong Kong whose owner Mr. Joseph Leewas the erstwhile proprietor of M/s.Zhenda Foreign Trade HK Ltd. The ownership ofM/s.Zhenda Foreign Trade HK Ltd. was transferred from Mr. Joseph Lee to him andhis mother on payment of HKD 8000. Neither he nor his mother, as Co-Directors ofZhenda Foreign Trade HK Limited, had authorised Hertman Kong for signing theinvoice and Packing Lists.

53.2.4. Hence, from the discussion supra it is evident that Shri Arnab Sinha wasinstrumental in fabrication of invoice and packing list and the contents of the invoiceand packing list also dld not reFlect the true nature of the shipped goods.

53.2.6. I observe that as the invoices with respect to the subject consignmentshad been raised in the month of May and June of 2017, considering the fact thatneither of the consignor or consignee had operative FOREX bank accounts, theinvoices are bogus. Legally no transaction could happen as there were no bankaccounts linked with the entities to transact from.

SCN: DRI/ Kzu/CF/ INT- 7s/ Pt. sri Ram/464O dtd 4.72.77

53.2.5. In this regard, I also observe that Shri Sushil Kumar Singh hadvoluntarily stated that Sri Ram Traders had only one bank account at Tamil NadMercantile Bank Limited, Kolkata which had been closed in January/ February 2017.

53.3. Having discussed the discrepancies supra with regard to bonafide of theimports and m is-decla rations in description in the impugned import, I reject thedeclared value ofa, Rs. 4t33,6O3/- (Rupees Four Lakh Thirty Three Thousand Six Hundred and

Three only) of the consignment imported vide Bill of Entry No. 9948788 dated03.06.20L7;

Page 83 of 145

F.No. s33- 23l2c17 ADIN (A&A)b. Rs. 5,53,043/- (Rupees Five Lakh Fifty Three Thousand and Forty Three only)

of the consignment imported vide Bill of Entry No, 994a8O4 dated 03.06.2017under section 14 of the customs Act, 1962 read with Rule 12 of the customsValuation (Determination of Value of Imported Goods) Rules, 2007.

54. Having rejected the declared value of the impugned goods, I.proceed to re-determine the same as per the customs valuation (Determination of Value ofImported Goods) Rules, 2007.

54.1. I find that the Investigative Authority at the end of inventory listcorresponding to each impugned consignment has stated "Value determined onthe basis of information available in the internet for the original productsand subject to verification of the genuineness of such goods." I observe thatthe Investigatlve Authority could not verify the genuineness of the branded goods atthe time of examination as the same needed to be done in conformity with theprovisions of IPR Rules, 2007. In this regard, first i proceed to ascertain if provisionsof IPR Rules 2007 have been followed with respect to the instant impugnedconsignments.

54.1.1. I find that under DRI Kolkata letter 28.08.2017, ADG (Systems), RiskManagement Division (RMD), Mumbai was requested to provide the details of theauthorised representative of the IPR right holder of 43 brands, including the saidbrands found in the subject consignments, registered with Customs authorities asrequired under IPR (Intellectual Property Rights) Rules 2007.

54.L.2. By email dated 29.08.2017, RMD Mumbai provided list of therepresentatives of right holders of 18 brand of watches, and the list of therepresentatives of right holders of NIKE, ADIDAS and GAP shoes who areregistered with Customs authorities.

54,1.3. I find that under DRI Kolkata letter dated 3t.08.2017, therepresentatives of the said 18 brands were requested to join the proceedings interms of the provisions of Rule 7(5) of IPR Rules, 2007. The letters were sent to theirrespective e-mail IDs as well as their correspondence addresses by post.

54.1.4, The 5 representing firms, namely, (1) M/ s United Overseas Trade MarkCompany, (2) Dahlia Sen Oberoi, (3) S. Majumdar & Co., (4) Rahul Sethi, (5)Krishna & Saurastri responded to join the proceedings. However, the other two,namely, Swatch Group (India) Private Ltd and De Penning & De Penning did notrespond.

54.1.5, I find that M/s. S. Majumdar & Co., authorised representative ofGiorgio Armani S.P.A vide report dated 18.11.2017, opined that all the wristwatches marked as EMPORIO ARMANI found in one of the conslgnments of M/sSushil Kumar Singh are counterfeit products and those have been imported incontravention of the provlsions of IPR Rules, 2007. Accordingly, the report given byM/s. S. Majumdar & Co. may be treated as a Notice under section 3(1) of the IPRRules,2007.

SCN: DRI/KZU/CF/INT-75/ Pt. Sri Ram/464o dtd 4.72.77

54,1.6. I find that I\4/s. Legist IPR Services Limited, authorised representative ofAdidas A.G and Nike Innovate C.V. vide report dated 28.t1,.2017, opined that allthe shoes marked as "Adidas" and "Nike" found in one of the consignments of M/sSushil Kumar Singh are counterfeit products and those have been imported incontravention of the provisions of IPR Rules, 2007. Accordingly, the report given by

Page 84 of 145

,, u ru ot i."',I:"'i i"l'JiTi f ij ifilIPR Rules, 2007.

54.2, l find that despite intimation by the Investigating Authority to IPR holders ofBURBERRY, CARRERA, CARTIER, GUCCI, LONGINES, MICHAEL KORS MONT BLANC,OMEGA, PATEK PHILLIPE PIAGET, RADO, ROLEX, TISSOT, the same failed to join theproceedings in terms of IPR Rules, 2007 despite repeated requests by theInvestigative Agency.

54,3. I find that from the verification reports of authorised person of brand owners,it is evident that the shoes bearing Trademark / Logo of NIKE & ADIDAS and wristwatch under logo of EMPORIO ARI'4ANI imported were counterfeit and prohibitedunder Notification No. 5U2010-Customs (NT) dated 30.06.2010.

54.4, I find that import of impugned counterfeit goods is prohibited under theprovisions of IPR Rules, 2007 and there is no settled precedence in rules toascertain the value of counterfeit goods. Therefore, valuation of the counterfeitgoods is liable to be rejected under rule 12 ibld.

54.5. I find that in the instant matter, the value cannot be ascertained as per themethod prescribed under Rule 3(1) of the Customs Valuation (Determination of Valueof Imported Goods) Rules, 2007, as the transaction is not genuine. Accordingly, theprovisions of Rule 3(4) ibid are to be applied for arriving at the correct transactionvalue in the instant case. In terms of Rule 3(4) ibid, the value shall be determined byproceeding sequentially through Rule 4 to Rule 9 of Customs Valuation(Determination of Value of Imported Goods) Rules, 2007.

54.6. As there is a reasonable doubt regarding the truth and accuracy of the valuedeclared, it is liable to be rejected in terms of Rule 12 and deemed that transactionvalue in terms of Rule 3 of the Customs Valuation (Determination of Value of TheImported Goods) Rules, 2007, is to be accepted where there are direct evidenceswith regard to the price actually paid or payable in respect of the imported goods by

the importer. where actual transaction value which means price pald or payable

cannot be ascertained on the basis of Rule 3 0f the customs valuation(Determination of Value of The Imported Goods) Rules, 2007, the value shall be

determined by proceeding to subsequent Rules.

54.7. I observe that rule 4 of CVR, 2007 deals with transaction value of identlcalgoods. The term "identical goods" has been defined under Rule 2 (1Xd) of the CVR,

2007 which is as under:

"(d) "identical gootls" nrcans imported goods -(i).whih ure sanre in oil ,"rpn"tt, inctuding physicul charocteristics, quoli| und repulation as lhe

gioods being t,aluad except jor ntinor clillerences in appearance that do nol affect tht value of the

goods;(ii) prodaced in the countl' in which the goods being valued were ptoduced: und

liiij produc.ed b_r the sonrc'person xho protluced the goods, or vhere no such goods urc qt'ailuble,

goods produced b1, a differenl person,'iut

shall nor inclutle iniportei goocts u,here engineering. derclopmenl x'ork, url u'ork' design u'ork,

plan or sketch torlertiken in htdia y'ere contplete(l directly or indirectlt, bv lhe hw'er on lhese'irnportert

goods Jree of churge or ut a reduced cosl .for usc in conneclion u'ith the production ond

sule for erport of lhese intported goods: "

54.7.L, I observe that neither the IEc holder nor the cHA has been able toproduce any certificate of origin with respect to the impugned goods. Hehce Iconclude that valuation of the subled goods cannot be or could not have been done

SCN DRI/ KZU /cF/ INT-7'/ Pt. Sri Ram/4640 dtd 4.72.77 Page 85 of 145

vunder Ruie 4 of the CVR, 2007. Hence I proceedimpugned goods under Rule 5 of the CVR, 2007.

54,10. Rule 7 of the CVR, 2O07 is concerned withtransaction value of the goods by using the concept ofconvenience I reproduce the relevant section as under:

54.8. I observe that rule 5 of cvR, 2007 deals with transaction value of similargoods. The term "similar goods" has been defined under Rule 2 (1)(f) of the CVR,2007 which is as under:

i) "similar gootls" meun.s intportel guxls -

F.No. s33, 2312017 ADIN (A&A)to determine the value of the

the determination ofDeductive value. For

(i) v'hich although not ulike in ull respecl.s. hute likc chu'uc t eri.stics ontl like tonrpone t nrutcrielsvhi<'h enable them lo perJoru the sune.fimc:lions und to be trnnnterciulltt inlerchotgcuhle rith tltcgootls beingtalued hur,fugi regard to the quolin*, reputuliort arttl the exiljtence ol'trutle nurk.

(ii) produced in the country in which the gootls being valued were produced: and

(iii) prodtrced by the sante person who produced the goods being talued. or v'here no such goodsare at ailable, goods prodtrced b1.; a diffbrent person,bul shall not include imported goods y,here engineering, developmenl u,ork, art v'ork, tlesign work,plan or skelch undertaken in India were conpleted directly or indirectly by the buyer on theseimported goods free of charge or al a reduced cost for use in connection with the production andsale for erport of these intported goods;"

54.8.1. I observe that neither the IEC holder nor the CHA has been able toproduce any Certificate of Origin with respect to the impugned goods. Hence Iconclude that valuation of the subject goods cannot be or could not have been doneby Rule 5 of the CVR, 2007. Thereafter, I proceed to determine the value of theimpugned goods under Rule 6 of the CVR, 2007.

54.9, Provisions of Rule 6 of CVR, 2007 is reproduced as under:

"Rule6, Determitralion of v ue wherewtlue can not be detern ned under rules 3, 4 untl 5.-

If the value of imported goods cannot be deterntined under the provisions of rules 3, I and 5, the valueshall be determined under the provisions ofrule 7 or, when the value cannot be determined under thot rule,tmder rule 8.

Provided lhal al lhe request of the importer, and with the approttal of the proper officer, the order ofapplication ofrules 7 and 8 shall be reyersed."

54.9.1. Thereafter, I proceed to determine the value of the impugned goodsunder Rule 7 of the CVR, 2007.

(1) Subject lo the prorisions ofrule 3, ifthe goods heing volued or idenlical or similctr intported goodsare soltl in Indi4 in the condition .$ impofied ul or obout the tinte at which the declaratittt .fordeterninaliotl of talue is presented, lhe value of imported goods shtll be based on the unit price oltslrich the imported goods or identicql or sintilar ifiryorted goods are soltl itr the greotesl oggrcgatequantity to persons who tre not reloted to the sellers in Indfu, subject to the follov,ing deduclions : -

(i) either the contrtti.ssion usuallv paid or agreed to be pttid or rhe addirions usually ntade for profi'tsond general expenses in connection v,ith sales in India of inported goods of the sarne cluss or kind:

SCN: DRI/ KzU/cF/ INT-75/ Pt. Sri Ram/464O dtd 4.72.77

"Rule 7. Deductive vdue . -

Page 86 of 145

F.No. s33- 2312017 ADJN (A&A)(ii) lhe usuul ttt.tt.r of troxport otd instn'turtc und ussoLidtctl L'(,.\r.\ itttttretl r ithin Intliu:

(iii) thc L'uil(,nts dtlie.\ Lotd otltr tu.\c.s ptt.tuhlc in lndiu bt rt,u:ttrr of irrryortLttiort or..st e rl thc gtxxl.s.

/21 ll ttcither lha inlpo ed good:; nor klcnticul nor sinihr inportctl gootls u.e sohl ut or ubrn thcsuna linte o/ inryorlulittrr ttl thc goods bcing ralued. thc t'ulue of intprtrtacl gtntls shull. suhjeclolhenrisa ro the proNisions of suh-rule ( l). be bu:;etl on lhc unit price ut vhicll thc inryortecl gtnds oridenticol or .similur intported good,s are sold in lntlitt. ttt tha e{lrliesl dute aJier i ry)ortotion but beJbrethe erpir.t, of ninety days after such importalion.

(3) (a) lJ neilher lhe intporled goods nor identical nor similur imported goods ora soltl in lrulia in thecontlition os inryorled, then. the vttlue sholl be bused on the unil price ol v'hich the inported goods.afler Jitrlher processing, are sold in the greatest aggregate qltontitt\ to persons u,ho ore not related tothe seller fu hdia.

(b) ln such deterntinotion, due allou,ance shall be made for the yalue added by prot.essfug atrd thedeductions providedfor in itents (i) to (iii) ofsub-r e (1)."

54,10.1, It has been already established that the identical or similar nature of theimpugned goods cannot be or could not have been ascertained owing to reasonsstated in Para 54.8.1and Para 54.9.1supra.

54.10.2. I observe that as the impugned goods have been seized by theInvestigative Agency and the option of provisional release u/s 110A of the CustomsAct, 1962 ibid have not been exercised before me by the IEC holder, thecircumstance of sale of "the" imported goods does not arise. Here I observe that,Definite article "the" has been used before the term "imported goods" in all the subrules of Rule 7 of CVR, 2007 indicating that the transaction value via deductive valuemethod in case identical or similar goods cannot be found, can only be possible withrespect to the goods in question by allowing it to be sold after clearance(provisionally) in the greatest aggregate quantity within 90 days of import clearance.

54.10.3. So I conclude that to arrive at the transaction value of the impugnedgoods by the method of deduction as envisaged under Rule 7 of CVR, 2007, theimpugned goods have to be given clearance for home consumption first. As its notthe case in the instant matter, the valuation of the goods cannot be or could nothave been done under Rule 7 of CVR, 2007. Now I proceed to determine the value ofthe impugned goods under Rule 8 of CVR, 2007.

54.11. Rule 8 of the CVR, 2OO7 is concerned withtransaction value of the goods by using the concept ofconvenience I reproduce the relevant section as under:

the determination ofComputed value. For

"Rale 8. Computed value . -

(a) the cost or value of malerials and fabrication or olher processing employed in producing the importedgoods;

SCN: DRI/ KZU /CF/INT- ts/ Pt. Sri Ram/464O dtd 4.72.77

Subject to the provisions of rule 3, the value of imported goods shall be based on a computed volue, whichshall consist ofthe sum of-

(h) tn amount for proJil and generol expenses eqa l lo thot usually refleaed in sales of goods of thesame closs or kind as the goods being valaed which are made by producers in lhe coufltry of exportdionfor export lo lttdia;

(c) the cost or value of all other expenses under sub-rule (2) of rule ) 0. "

Page 87 of 145 '

F.No. S33 23l20i7 ADIN (A&A)

54.11.1, In this regard, I observe that neither the IEC holder nor the CHA hasbeen able to produce any Certificate of Origin with respeit to the lmpugned goods. Ifurther observe that neither the IEC holder nor the CHA has given any evidence as tomanufacture of the goods of the same class or kind as the impugned goods beingvalued which are made by producers in the country of exportation for export to India.In terms of aforementioned findings, I conclude that the valuation of the impugnedgoods cannot be or could not have been done under Rule B of CVR, 2007.

54.L2. Thus, recourse is to be taken to the Rule 9 of the Customs ValuationRules, 2007 which provides for determination of value where the value of theimported goods cannot be determined under the provisions of the any of thepreceding rules, the value shall be determined using reasonable means consistentwith the principles and general provisions of these rules and on the basis of dataavaila ble in India.

54.13. Further, I observe that during the investigation, Brand Owners wererequested to inform the price of the shoes imported. However, the right holders didnot inForm the price. Nor did the importer(s) provide any authenticated price list ofthe impugned goods. Therefore, market value of the shoes, Brand-wise and Model-wise, taken from the available resources over the internet during seizure of theimpugned goods had to be relied upon for valuation.

54,t4, In this regard, I have to rely on the findings at Para 54.1 supra that theInvestigative Authority at the end of inventory list corresponding to each impugnedconsignment has stated "Value determined on the basis of informationavailable in the internet for the original products and subject to verificationof the genuineness of such goods.". The above discussion and findings haveestablished the facts that valuation of the impugned goods could only have beendone vide Rule 9 of the CVR, 2007

54.15. Accordingly, I find that the Assessable Value ofa) Rs. 7,9O,L5,4311- vis-a-vis the goods impofted vide Bill of Entry no. 9948788

dated O3.o6.2O17;b) Rs. 1,95,44,4OO1- vis-a-vis the goods imported vide Bill of Entry no. 99488O4

dated 03.06.2O17 &c) Rs. 6,55,957 l- vis-a-vis the goods imported vide AWB No. 217155434O4

dated 05.06.2017 have been arrived at by the Investigating Authority correctlyas per Rule 9 of the Customs Valuation (Determination of Value of the ImportedGoods) Rules, 2007 based on available data in consonance with establishedpractice. Held so.

54.16. I observe that the Noticee Nos. 02, 04, 05 & O6 have disputed thevaluation method of the impugned goods, but they have not disclosed the correctvalue of the impugned goods in the written submission. The impugned goods wereaffixed with brand name of various reputed brand owners. The said brand ownersmanufacture various types of model, quality, design, etc. Therefore, the value ofthese countefeit goods has been ascertained as per the resemblance of similar/identical branded goods from online websites after allowing reasonable deduction incalculation.

54,L7, I find that the description of goods found during examination was quitedifferent from the description shown in the packing list and invoice, except few items.Therefore, the value of the said mis-declared goods shown the invoice for the BoENos. 9948788 and 9948804 both dated 03.06.2OL7 is not acceptable for the

SCN: DRI/KZU/CF/INT-75/ Pt. Sri Ram/4640 dtd 4.72.77 Page 88 of 145

F.No. S33 23l2Ci7 ADJN (A&A)purpose of value of saici counterfeit goods. The Noticee Nos, 02, 04, 05 & 06,during the course of investigation, have also not disclosed the actual value ofcounterfeit goods nor have they provided the value of counterfeit goods in theirwritten submission. The value of counterfeit goods also cannot be ascertained as perRules 3 to 8 of the Customs Valuation Rules, 2007, in the absence of anycontemporaneous import data. Therefore, the only way to determine the value of thecounterfeit goods is to resort to rule 9 of the Customs valuation Rules, 2007 i.e. theResidual Method.

55. Next I come to the allegation in the Show Cause Notice as to whether the 6pieces of wrist watches marked as EMPORIO ARMANI imported under cover ofBill of Entry No. 9948788 dated O3.O6,2OL7 and 2952 pairs of NIKE shoes and1OO8 pairs of ADIDAS shoes imported under cover of the Bill of Entry No.9948804 dated 03,06.2O17 under the IEC of M/s Sushil Kumar Singh have beenimported in violation of the provisions of Intellectual property Rights (ImportedGoods) Enforcement Rules, 2007 read with clauses (n) and (u) of sub- section (2) ofSection 11 of the Customs Act, 1962 and should not be confiscated under Section111(d), 111(0, 111(i), 111(l) and 111(m) of the Customs Act, 1962 and destroyedunder the provisions of Rule 11(1) of the IPR Rules, 2007.

55.1. In this regard I will discuss the relevant laws, applicable for the import ofcounterfeit goods imported into India. I find that section 11 the Custom Act,7962,prohibits the importation of goods if so notified. Relevant text of the said Act is asu nder:

"Section 11. Powet to prohibil importotion or exporlation of goods.-(l) If the Centrul Governntent issatisfied that it is necessary so to do for any of the purposes specified in subsection (2), it nruy, bynotirtcotion in the fficial Gazette, prohibit either absolutely or subject to such conditions (to be fulflledbefore or after clearance) as may be specified in the nolirtcafion, the import or export of goods of anyspecified description.

(2)The purposes referred to in sub-section (l) are thefollowing(a)the maintenance ofthe security of India:

h, lhe protection ofpalents, lrodemuks, copyighls, designs and geographicnl indicationsl;

(v) any other purpose conducive to the inlerests oJ the general public

(u) the preventiott of the conlravention of ny l tu for the tinte being in force; "

55.2. I find that Notification No.49l2007-Cus (NT) dated 08.05.2007, andNotification No. 5U201O-Cus (NT) dated 30.06.2010 have been issued for thepurpose of Clause (n) and (u) of sub-section 2 of section 11 of the Customs Act,1962. Relevant text of Notification No.49/2OO7 -Cus (NT) dated 08.05.2007isasu nder:

"In exercise of the powers conferred by section 11 of the Customs Act, 1962 (52 of 1962), the CentralGoyernmenl, being satisfied that it is necessory in the public interesl so to do, for the purposes specifed inclauses (n) and (u) of sub-section (2) of that section, hereby prohibits the intport of the following goods,

subject to following of conditions and procedures as specified in the Intelleclual Properly Righls (ImportedGoods) Enforc em en t Ru I es, 2 007, na nte ly

(i) goods hafing applied thereto a false trade mark as specified in section 102 of the Trade Marks fct,'I 999 ( 17 of I 999)

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F.No. 533 2312017 ADJN (A&A)

ll) ttf .scttitn 2 ol thc Trutle lllu'ks ,ltt. 1999t1- d. 1999). t henrisa lhqn irr relutiert to ult.of tJle m( tcr.\tpt<'ilied irr sub- cfuu.ses lll) urul till) of cluu.se t:u) o/.thut stths.,Llion: t'

55.2.1, It is observed from above text that the goods having false tradedescription within the meaning of clause (i) of sub-section 2 of the Trade Marks Act,1999 is prohibited to be imported into India as per clause (n) of section 11 of theCustoms Act, 1962."

55.3. Now, I discuss the relevant text of Notification30.06.2010, which is as under:

No.51/2010-Cus (NT) dated

'G..tR. ln erercise of the pov,ers tonferued b.t, section ll oJ'the ('ustont.s Acl, 1962 (52 ol1962), and in supersession rf the noti/ictttit;tt No. 19t2007-Customs (N.7.), of the (iovernnent of lndiu,Ministrt o/ I'inatre. Deportmenl of Ravenue. Cenlral Bourd oJ Excise and Custonts, dated the 8lh Ma1,.2007 puhlished fu the Gozetle of India, Ertraonlinun:. Port ll. Section 3, Sub-section (i), ride numberG.S.R. 333(E), dated the 8th Moy. 2007, excepl us respects lhings done or ontitted to be done bdore suchsupersession, the Centrctl Governnrcnt, being sulisJied lhat it is necessqry in the public ifitere.\t so to do,./artlte purposes specified in chuses (n) and (u)of sult-section (2) of thot section, hereb), ptohibits the importof the following goods intended far sale or use in India, subject to following condilions and procedures asspecified in the Intellectual Property Righx (Intported Goods) Enforcenent Rules. 2007, namely:-

(ii) goods having applied there lo a false trade de.scriplion yithin the nteaning oJ clouse (i) of sub-section(l) of seclion 2 of the Trade Ma*s Acl, 1999(17 oJ 19991, otherw,ise lhan in relation to dny o:f the mattersspecifed in sub- clauses (ii) ond (iii) ofclause (za) of tlrot subsection; "

55.3.1. From the above text, it is observed that any imported goods, havingfalse trade description within the meaning of Trade Mark Act, 1999, are prohibitedgoods in terms oF clause (n) and (u) of sub-section 2 of section 11 of the Custom Act,t962.

55.4. Now, I refer the relevant section of Trade Marks Act, 1999, whlch is applicablein the instant case:

" 2. DeJinitions and interprelation.-

(I) It, lhis Act, unless the conletl olherwise requires,-

(II) any alteration of a trade description os regards the goods or services to which it is opplied,whether by way of addition, eflacement or otherwise, where lhat alteration makes the descriptionuntrue or misleading in a maleriql respect, or

(III) any trade description which denotes or intplies thdl lhere are contained, as regards lhe goods lowhich it is applied, more yards or meters thm lhere are contained lherein standard yards or slandardmeters, or

(lV) any marks or arrangement or combinalion thereofwhen applied-

(a) to goods in such o manner os to be tikely to lead persons to believe that the goods aie themanufacture or merchondise of sonre person other lhon lhe person -whose nterchandise ormanufaclure they really are.

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(i) goods having applied thereto a false trade ntark as specifed in section 102 of the Trade Marks Act,1999 (17 of 1999);

(I) t lrade description which is untrue or misleoding in a material respect os regtrds lhe goods orsemices lo which it is opplied or

F.No. 533 2312017 ADjN {A&A)

lh/ i11 t(ltiit)t1 /o.rtlth'c'.r itt .ttrdt t r t t t t t t t t L, t ' ( t \ to fu likL,lt trt lt,uL/ lttrsottt to h1,!jq1.1, 1/x11 11,r,

or initiol.\ y'erc u trutfu de,\ct.iption in an| cusa -ttharc thc nun? or i itiul.\-

/tt1 is or urc nol u trudc ku'k or put't of (1 tru.lc ko.k, akl

(b1 is or ure identicql trith or deceptit'elv .\intilur lo rhe nanrc or initiols of u parson conr)inta otlhusiness in connection v,ith goods or serr)ices of the sane description ctr both ttntl v'ho has notatrlhorized the use ofsuch n.tnrc or initials, and

(c) is or are either Ihe nanre or initiol.s of a fctions person or some person not bono fide carryingon business in conneclion v,ith such goods or services.

(ztt) "trade description " means any descriplion, st ement or other indication, direct orindirect,-

(i1as lo lhe nunrher, quontity, meosure, gauge or weight of ttny grxxls, or(ii)os to lhe slandatd of qaalit! of ony gootls or seryices occording to a classificationcomn onl! used or recognized in the lrode, or

102. (1) A person shall be deemed to fnlsify a tnule nutrk who, either

(a)wi rout the assenl of lhe proprietor of lhe trode mork nakes thot trade mark or o deceptivelysimilar matk: or(b)falsifies any genuine trode mdrk, whether by alteration, addition, effocenrcnt or otherwise.

(2) A person shall he deemed tofalsely opply to goods or semices a tntde mark who, witlrout the assent oflhe prcprielot of thc tts.le matk-

(a)opplies such lrade mark or a deceptively similar mark lo gootls or services or any packagecontaining goods.(b)uses ony packoge bearing a mark which is identical v)ith or deceptively similar to the tradenork ofsuch proprietor, for the purpose ofpocking, frlling or wrappitg therein any goods otherthan the genuine goods of the proprielor of the lrade mark.

(3) Any trade mark falsifed as nrentioned in sub-section (l) or falsely applied as mentioned in sub-section(2) is in this Act referred to as a false trade mark

(11 In tny proseculion for folsifying a trode matk or falsely applying o trade m tk to goods or scrvicesthe burden ofproving lhe assenl ofthe propietot shall lie on the accused. "

55.5. I find that the IEC holder has facilitated impoft of the goods having, inter-alia,brand name viz., ADIDAS. NIKE & EN4PORIO ARMANI. These goods were having falsetrade description in terms of clause (I) of sub-section (i) of section 2 of the TradeMark Act, 1999 to mislead the material in such a manner and likely to believe by acommon man that the said goods are manufactured by a real manufacturer,Therefore, such goods, having false trade description, are prohibited for import. inIndia in terms of clause (n) of sub-section 2 of section 11 of the Customs Act, 1962.

SCN: DRI/ KzU /CF/INT-I, / Pt. Sri Ram/4640 dtd 4.72.77 Page 91 of 145

And the.fact thot o trode description is a lrade mark or part of o trade nwk shall not prevenlsuch trade descriplion being afalse trade descriplion -u,ithin the meaning ofthis Act.

" 2. Definitions.-(u) " goods irtfi-inging inlellecluul propert.r' rights " meots un.t,gtxtds rhich ure nrutle, rcprotlucecl, putinlo circulotiott or othenri.se used itt breuch of the intellectuul proJ)erly lcm.s in Intliu or outside lndia tntlvill?out lhe consent of the right holder ot.o person clull, ttuthorized Io cb so by,the right fu*ler;

(h)"i telleduol propertv" nteuns a copvright u.s defited in the cop.yright Act. 1957, trude ngk as definetlin the TrQde Murks Acl, 1999, patent os deJined h the Putenls Act, 1970, design us tlefined in the DesigrtsAd, 2000 and geogruphical indicotions as dafined in the Geographical lntlicatiotts oJ Goor)s (Regislrutionond Proleclion) Act. 1999: "

55.8. In the instant case the representatives of the brand holders (ADIDAS, NIKE &EMPORIO ARMANI) had participated in inspection of the goods. The representativeshad also opined in their inspection report that the impugned goods were infringedand hence co u nterfeit goods.

55.9. Regarding confiscation of the goods, I find that Section 111(d) ibid providesthat if any goods which are imported or attempted to be imported, contrary to anyprohibition imposed by or under this Act or any other law for the time being in forceare liable to confiscation under this Act. The counterfeit goods i.e. the 6 wristwatches having the logo "EMPORIO ARI4ANI" have been imported vide BoE No.994B7BB dated 03.06.2017 and 2952 pairs of NIKE shoes and 1008 pairs of ADIDASshoes imported under cover of the Bill of Entry No. 9948804 dated 03.06.2O17 byshowing the description of goods as "un-branded" goods but on examination it wasfound that the goods were having the brand of various brand owners. Thus theyimported impugned goods in contravention of the IPR Rules. Therefore thesaid goods are liable for confiscation under Section 111 (d) ibid. Held so.

55.10. I also find that as the impugned goods were required to bementioned under the regulations in an arriva! manifest or import manifestor import report the same have not been mentioned under the provisions ofthe Customs Act, 1962. Therefore the said goods are liable for confiscationunder Section 111 (f) of the Act ibid. Held so.

55.11. Further, I find that as the impugned goods were found concealedin the packages under the two BoEs after unloading of the same at thedestination port, they are also liable for confiscation under Section 111 (i)ibid. Held so.

F. No. s33- 2312017 ADJN {A&A)v 55.6. i also find that Intellectual property Rights (Imported Goods) EnforcementRules, 2007 has been notified vide Notification No. 47 /2007-cus (NT) dated08.05.2007, under section 11 ibid read with rule 156 ibid, relevant provision of thesaid rule is as under:

55.7. Further I find that rule 3 to B prescribe the procedure to be followed by theCustoms in case the imported goods is found to be infringed as per the IpR Rules(supra).

55.12. I also find that as the impugned goods were not included in theentry made under section 46 of this Act, they are also liable for confiscationunder Section 111 (l) ibid. Held so.

56. Having discussed the prohibitive nature of the 6 wrist watches having thelogo "EMPORIO ARMANI" have been imported vide BoE No. 994B7BB dated03.06.2017 and 2952 pairs of NIKE shoes and 1008 pairs of ADIDAS shoes importedunder cover of the Bill of Entry No. 9948804 dated 03.06.2017, I conclude that as

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F.No. S33 2312017 ADtN (A&A)the aforementioned goods are prohibited for import, the same should bedisposed off in terms of Section 11(1) of IPR Rules, 07, Held so,

57, Now i shift my attention to decide whether the other items i.e. Wrist Watchesof brands BURBERRY, CARRERA, CARTIER, GUCCI, LONGINES, I\4ICHAEL KORS I4ONTBLANC, OMEGA, PATEK PHILLIPE PIAGET, RADO, ROLEX, TISSOT together with theHigh Value branded mobile phones, Branded Earphones, Branded headphones,branded mobile covers, branded motherboards/ logic cards/ Accessories kit forbranded television sets/ speakers, etc. as detailed in the Annexure to the noticeimported by M/s Sushil Kumar Singh under Bills of Entry No. 9948788 dated03/06/2017 and Air Way Bill No. 21715543404 dated 05.06.2017 have beenimpofted in contravention of the provisions of Section a6 @) of the Customs Act,1962, Rule 11 and Rule 14 of the Foreign Trade (Regulation) Rules, 1993 and isprohibited within the meaning of Section 2(33) of the Customs Act, 1962 and areliable to confiscation under Section 111(d), 111(f), 111(l), 111(l) and 111(m) andSection 119 of the Customs Act, 1962.

57.1. Section 2(33) of the Customs Act, 1962 defines "prohibited goods" whichmeans any goods the import or export of which is subject to any prohibition underthis Act or any other law for the time being in force but does not include any suchgoods in respect of which the conditions subject to which the goods are permitted tobe imported or exported have been complied with.

57,2, I find that the wrist watches of brands BURBERRY, CARRERA, CARTIER, GUCCI,LONGINES, MICHAEL KORS IVIONT BLANC, OMEGA, PATEK PHILLIPE PIAGET, RADO,ROLEX, TISSOT (based on the report given the IPR holder of "EMPORIO ARMANI"logo) together with the branded, high value mobile phones, branded earphones,branded headphones, branded mobile covers, branded motherboards/ logic cards/accessories kit for branded television sets/ speakers, etc. as detailed in the Annexureto the notice imported by M/s Sushil Kumar Singh under the Bill of Entry No.9948788 dated 03/06/2017 and Air Way Bill No. 27715543404 dated 05.06.2017;the same have not been conclusively proven to be counterfeit due to lack of co-operation from the concerned IPR holders.

57.2.1, Nevertheless. I also observe that, as.per records available with customs,out of the brands BURBERRY, CARRERA, CARTIER, GUCCI, LONGINES, MICHAELKORS MONT BLANC, OMEGA, PATEK PHILLIPE PIAGET, RADO, ROLEX, TISSOT, thcfollowing have already registered their trademarks in India: Burberry, EmporioAmrani, Gucci, Michael Kors, Longines, Omega, Rado & Tissot, Extrapolatingon the lines of the findings of the Investigative Agency vis-a-vis goods covered underthe brand EMPORIO ARMANI, lt can be logically concluded that the rest of thebranded goods (wrist watches) are also counterfeit. In this regard, I observethat the neither the IEC holder nor the beneficial owner of the goods have been ableto produce any authenticated price list along with authorisation from the brandowners for import into India. I observe that apart from wrist watch and shoes, othergoods(mobile phones, Earphones, headphones, mobile covers, motherboards/ logiccards/ Accessories kit for television sets/ speakers, etc.) of reputed internal brandslike Sony, Samsung, Apple, LG, MI having a prominent presence in India have alsobeen imported without having proper authorisation. As part of the consignmentcontaining reputed branded goods have already shown to be counterfeit, the IECholder being same across all three consignments, it can be concluded that all thebranded items in the three consignments are of counterfeit nature in terms of Rule 6of IPR Rules, 2007.

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F.No. 533 23l2Ci7 ADiN (A&A)

57.2.2. I further observe that the IEC holder (Shrl Sushil Kumar Singh) hascearly stated voluntarlly u/s 108 of the Customs Act, 1962 that he is not the actuaowner of the goods. The actual beneficia owner of the goods imported vide BoE No.99487BB dated 03.06.2017 is Shri Shahansha Mallick aiias Badshah (Noticee No. 2);The actual beneficial owner of the goods imported vide BoE No. 9948804 dated03.06.2077 is Shri Navneet Kumar (Noticee No. 4) & the actual beneficial owner ofthe goods imported vide AWB No. 21715543404 dated 05.06.2017 is Shri ArnabSinha (Noticee No. 9). i observe that none of the Noticee Nos. 02, 04 and 09 havesubmitted any copy of Import Export Code registered in their name during the courseof adjudication or during the course of investigation. During the course of PersonalHearing or written submission, Noticee No. 1 i.e. Shri Sushil Kumar Singh who is thedeclared importer vis-a-vis the subject three consignments has also failed to produceany legal contract between him and Badshah, Navneet Kumar and Arnab Sinharegarding sale of goods to them after Customs clearance. On the contrary, I find thatNoticee No. t had accepted monetary benefits in exchange for loaning IEC issued inhis name to various unscrupulous persons including the Noticees named in theinstant Show Cause Notice.

"7. Imporler-exporter Code Number. - No person shall nruke ony intporl or export ercepl under anIntporler-exporler Code Nunber granted by the Director General or the olrtcer authorised by the DirectorGenerol in this behalf, in occordance with the procedure specifed in this behal;f by rhe Direclor Getterul."

57,3. Hence I conclude that the aforementioned goods (other than the 6 wristwatches having the logo "EMPORIO ARMANI" imported vide BoE No. 9948788 dated03.06.2017 and 2952 pairs of NIKE shoes and 1008 pairs of ADIDAS shoes importedvide BoE No.99488804 dated 03.06.2017) imported vide BoE No.s 9948788 dated03.06.2017 and AWB No. 21715543404 dated 05.06.2017 when read conjointly withsection 7 of the The Foreign Trade (Development and Regulation) Act, 1992, IPRRules, 2007 and findings of the case as discussed supra, conform to the definition of"prohibited goods" u/s 2(33) of the Act, ibid. Therefore I find that the said goodsare liable for confiscation under Section 111 (d) ibid. Held so.

57.4. I also find that as the impugned goods were required to be mentioned underthe regulations in an arrival manifest or import manifest or import report the samehave not been mentioned under the provisions of the Customs Act, 1962. Thereforethe said goods are liable for confiscation under Section 111 (f) of the Act ibid. Heldso.

57.5, Further, I find that as the wrist watches of brands BURBERRY, CARRERA,CARTIER, GUCCI, LONGINES, MICHAEL KORS MONT BLANC, OIVIEGA, PATEKPHILLIPE PIAGET, RADO, ROLEX, TISSOT together with the High Value brandedmobile phones, Branded Earphones, Branded headphones, branded mobile covers,branded motherboards/ logic cards/ Accessories kit for branded television sets/speakers, etc. as detailed in the Annexure to the notice were found concealed in thepackages under the two BoEs after unloading of the same at the destination port,they are also liable for confiscation under Section 111 (i) ibid. Held so.

57.6. I also find that as the wrist watches of brands BURBERRY, CARRERA, CARTIER,GUCCI, LONGINES, IYICHAEL KORS MONT BLANC, OMEGA, PATEK PHILLIPE PIAGET,RADO, ROLEX, TISSOT together with the High Value branded mobile phones,Branded Earphones, Branded headphones. branded mobile covers, brandedmotherboards/ logic cards/ Accessories kit for branded television sets/ speakers, etc.

SCN: DRI/ KZU/CF/INT-15/ Pt. Sri Ram/464O dtd 4.72.77

57.2,3, In this regard, I draw attention to section 7 of the The Foreign Trade(Development and Regulation) Act, 1992 which reads:

Page 94 of 145

F. No. S33 23/2017 AD)

as detailed in the Annexure to the notice were not included in the entry madesection 46 of this Act. they are also liable for confiscation under Section 111 (Held so.

N {A&A)u nder

r) ibid.

57.7. Regarding the consignment under BoE No. 9948404 dated O3.O6.2017, Ifind that the entire consignment is misdeclared in terms of description and valuationas discussed in detail and hence is liable for confiscation under section 111(d), 111(f),111(i), 111(l) and 111(m) ibid. Held so.

57.8. Regarding the consignment under AWB No. 21775543404 dated 05.06.2017, Ifind that no entry under section a6(1) of the Customs Act, 1962 has been made bythe importer vis-a-vis subject goods.

57.8,L. I observe that DRI's Intervention happened in the late hours on the dayof arrival of the goods under AWB No. 21715543404 dated 05.06.2017, givingenough time on part of the importer to file a declaration under section 46 of the Act,ibid. Despite having adequate time, the impoter M/s. Sushil Kumar Singh could notadduce any cogent reason for inability to file Bill of Entry declaration under section46 of the Act, ibid. The Import general manifest (IGM) filed vis-a-vis the importedconsignment does not mention presence of branded motherboards/ logic cards/Accessories kit. The only description of the goods declared in the IGM is "Electronicparts". The prohibitory nature of the goods have been already discussed indetail at Para Nos. 57.2.L to Para 57.2.4. Hence I find that the impugned goodsimported under AWB No. 21715543404 dated 05.06.2017 are liable to confiscationunder section 111(d) of the Act ibid. Held so.

57,a.2. I find that the aforementioned dutiable goods which are required to bementloned under the regulations in an arrival manifest or import manifest or importreport had not been mentioned. Hence the impugned goods imported under AWB No.21715543404 dated 05.06.2017 are liable to confiscation under section 111(f) of theAct ibid. Held so,

57.9. Next I come to the allegation whether the seized goods under BoE Nos.9948788 and 9948804 both dated 03.06.2017 and AWB No. 21715543404 dated05.O6.20t7 are liable to confiscation u/s ].l9 of the Customs Act, 1962.

57.9.1, I find that the quantity of unbranded Mobile Phone accessories importedvide BoE No. 994B7BB dated 03.06.2017 is roughly 53% of the total consignment.Rest 47olo of the consignment contains undeclared/ misdeclared goods. Therefore, Ifind that such quantity can be considered to be used for concealment ofimpugned goods and I am of the view that 82 cartons out of 153 cartons areliable for confiscation under section 119 ibid.Held so.

57.9.2, As for consignment under BoE No. 9948804 dated 03.06.2017, theentire consignment has been misdeclared in terms of brand. Hence I find that theuse of declared goods to conceal undeclared goods does not arise in this case.

57.9.3, Next I ponder over the applicability of confiscation under sectlon 119 ofthe Act ibid for the goods under AWB No. 21715543404 dated 05.06.2017. I find thatin the case of this consignment, no BoE has been filed under sectlon 46 of the Act,ibid. Notwithstanding, the IGM of the said consignment fails to mention the brandand specific details of the goods. Although the goods are of electronic nature, thepresence of branded goods like Sony and Samsung which has not been declared inthe AWB tantamounts to smuggling within the meaning imparted u/s 2(39) of the Act,ibid. Hence the unbranded electronic goods in the AWB No. 2L7L55434O4

SCNi DRI/ KzU/CF/ INT-7s/ Pt. Sri Ram/4640 dtd 4.72.77 Page 95 of 145

F.No.533 2 3/2C 17 ADrN (A&A)dated 05.06.2Ot7 are liable to confiscation u/s 119 of the Act ibid in view ofthe discovery of branded electronic items are detailed in the panchanamadated 21.O7.2017. Held so.

58, With respect to the allegation whether penalty under Section 112(a) and112(b) and under Section 114AA of the Customs Act, t962, is imposable on theNoticees as proposed in the Show Cause Notice, I observe the following-

58.1. Noticee No. (1) - M/s Sushil Kumar Singh:-

58.1.1. From the Show Cause Notice and DGFT website, I observe that M/sSushil Kumar Singh having IEC no. 0206076477 had declared main office addressat 28, Jhill Road, Cossipur, Kolkata-700002, and branch office(s) at

i. Makan No. D 498, Gali No.4, Rajeev Colony, Old Kundali, Delhi 11OO9a;

ii.g,Old China Bazar Street,3rd Floor, Room No.43, Kolkata, W.B.7OOOO1;

iii. L/26, Ghosh Bagan Lane, Kolkata,W.B.TOOOO2

58.1.2. When the officers of DRI visited the registered main address ofaforementioned company, no such company(s) was found to be existing at thepremises. On the contrary, it was observed that the premises was actually anaddress of a single room apartment in a dilapidated condition. Only the wife of ShriSushil Kumar Singh along with their sons were present.

58.1,3. I observe that vide voluntary statement(s) tendered by Noticee No. 01u/s 108 of the Customs Act, 1962, he has confessed, inter-alia, that

58,1.3.1. He never had any office of Sri Ram Traders at any of the declaredaddresses. He had only one address i.e. at 28, lhill Road, Cossipur, Kolkata-700002.All the other addresses as mentioned in his IEC were false.

58.1.3,2. He obtained the IEC - 0206076477 to lend the same to differentimporters and to earn money out of that lending.

58.1.3.3. in May 2Ot7, he had given his IEC to one Shahansha Mallik aliasBadshah who is having a shop In Fancy Market, Khidderpore, Kolkata. He also lentout his IEC to Arnab Sinha having office at N.S.Road in the name of Modern Frelght.

58.1.3.4. The consignment under the Bill of Entry 9948788 dated 03.06.2017 wasimported using his IEC and these goods were actually imported by Badshah and inthe case of consignments impofted under BoE No. 9948804 dated 03.06.2017, thegoods were actually brought by Navneet Kumar,DC.

58.1.4. I observe that vide voluntary statement(s) tendered by Noticee No. 02(Shri Shahansha Mallik alias Badshah) u/s 108 of the Customs Act, 1962, he hasconfessed, inter-alia, that:

58.1.4.1. He met Sushil Singh through Arnab Sinha and asked Sushil to lend hisIEC on commission basis and the rate negotiated was Rs. lOOOO/- perconsig n ment.

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58.1.3.5. He did not know how many imports were done under his IEC sinceJanuary 2Ol7 and how the payments were made for the imports. He had given hisIEC to Badshah and Nasir Uddin and they could explain the same.

F.No. 533 2312017 ADIN (A&A)

58.1.4.2. Later during l4arch 2077, when he was about to start importing goods,he came to know that Navneet Kumar was the DC at Airport Cargo and then hecalled him (Navneet) in his mobile no 98300150950 and met him in his officealong with Sushil Kumar Singh.

58.1.5. I observe that vide voluntary statement(s) tendered by Noticee No. 09(Shri Arnab Sinha) u/s 108 of the Customs Act, 1962, he has confessed, inter-alia,that:

58.1.5.1. He knew Sushil Kumar Singh as both of them were in transport businessSushil Kumar Singh once approached him and said that he has an IEC in his nameand he wanted to import. Arnab quoted their rate and condition that 1.4/s ZhendaForeign Trade HK Limited would be the supplier and M/ s Shipair Express would bethe carrier and the goods would be consigned to NAF Logistics and Sri Ram Traderswould be having the delivery order from NAF Logistics. Sushil Kumar Singh agreed tothe proposal and the rate. Arnab asked Sushil Kumar Singh whether he would importpersonally or somebody else would be importing on his behalf. Sushil Kumar Slnghstated that he would lend his IEC but did not disclose the person to whom he wouldbe lending the IEC.

58.1.5.2. Sometime in January February of 2077 one person called him on hismobile No. 9899203809 and introduced himself as Badshah of Khidderpore. He askedfor some IEC lender and in response to this he (Arnab) gave him the name andcontact number of Sushil Kumar Singh.

58,1.6. I find that Shri Aloke Ghosh (G-Card holder of the CHA) submitted theKnow Your Customer (KYC) documents on 07.09.2017 comprising IEC printout fromDirectorate General of Foreign Trade (DGFT) website, photocopies of Voter Card No.WB/27/740/0t2382 and PAN Card No. BALPS4932D of said Sushil Kumar Singh.

58.1.7. I observe that from the Customs EDI system it was observed that theIEC was extensively used during the period January,2015 to June,2017 throughvarious pots and airports of India. The IEC holder had expressed complete ignoranceabout the imports and he stated on record that he had lent out his IEC to oneCustoms Broker.

58.1.8. I observe that when DRI officers intervened and examined the threeconsignments under BoE Nos.9948788 and 9948804 both 03.06.2017 and AWB No.2t775543404 dated 05.06.2O17, significant discrepancies vis-a-vis importdocuments had been observed vide the respective Panchanamas. The extent ofmisdeclaration is so glaring that there cannot be any cogent explanation asto how approximately 5Oo/o of the contents of consignments did not tallywith the import declaration.

58.1.9. I observe that Sri Ram Traders (Trade name of M/s. Sushil Kumar Singhas reflected on the website of DGFT) has been declared as the buyer in all the threeconsignments.

58.1.10. I further observe that Noticee No. t has been duly served with the SCNalong with RUDs in electronic format but has failed to submit any defence against theSCN even after passage of more than 4 years and also has failed to appear beforeme during the Personal Hearing granted during the course of adjudication.

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Page 97 of l-45

F.\o. 533 2312017 ADIN (A&A)-58.1.11. Based on the p ethora o' evlcence ancj vo untary staterrents avai ab e

before me read with supplied RUDS, I conclude that M/s. Sushil Kumar Singhhaving IEC No, 0206016417 through its proprietor Shri Sushil Kumar Singhis a habitual offender. He had connived with unscrupulous person like ShriShahansha N4allik alias Badshah (Noticee No.2), Shri Arnab Sinha (Noticee No.09),Shri Navneet Kumar (Noticee No.4) with active support of Customs Officers ShriVikki Kumar (Noticee No. 5) and Shri Pranabananda Bala (Noticee No. 6) and CHAM/s. Sadguru Forwarders Pvt. Ltd. (Noticee No. 3) through their G-Card employeeShri Aloke Ghosh (Noticee No. 10) and others and abetted fraudulent imports in theIEC of aforesaid company. by way of filing two Bills of Entry No.s 994B7BB and9948804 both dated 03.06.2017 and with intention to file another BoE correspondingto one Air Way Bill No. 21775543404 dated 05.06.2017 by mis-declaring thedescription and value of the imported goods therein, much in violation of Section 46of Customs Act, 1962.

58,1.12. In order to do so, Shri Sushil Kumar Singh, for monetary gains,allowed unscrupulous persons like Shri Shahansha Malllk alias Badshah, Shri NavneetKumar and Shri Arnab Sinha to use his identity for the impugned fraudulent imports,as discussed above. Thus, by these acts of commission in abetting the scam offraudulent import of (i) Mobile Phone Accessories, (ii) Branded Shoes, (iii) WristWatches of Different International Brand, (iv) Branded high-end mobile phones,motherboards/ logic cards/ Accessories kit for branded television sets/ speakers, etc.by mis-declaring them as generic items with total mis-declared values to the tune ofRs.9,75,73,L85/- (Rupees Nine Crore Seventy Five Lakh Seventy Three ThousandOne Hundred and Eighty Five only),

a) he has rendered the goods imported under BoE No. 994B7BB dated 03.06.2017liable to confiscation under section 111(d), 111(f), 111(i), 111(l), 111(m) and119 of the Customs Act, 1962 read with Rule 6 of IPR Rules, 2OO7 for reasonsdiscussed su p ra;

b) he has rendered the goods imported under BoE No. 9948804 dated 03.06.2017liable to confiscation under section 111(d), 111(f), 111(i) and 111(l) of theCustoms Act, 1962 read with Rule 6 of IPR Rules, 2007 fot reasons discussedsupra; and

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c) he has rendered the goods imported under AWB No. 21715543404 dated05.06.2017 liable to confiscation under section 111 (d), 111 (f) and 119 ofCustoms Act, 1962 read with Rule 6 of IPR Rules, 2007, consequently havingmade hlmself liable for penalty under Section 112(a)(i) of Customs Act,1962.Held so.

58.1.13. Further, I observe that M/s. Sushil Kumar Singh having IEC No.O2O6O!64L7 through its proprietor Shri Sushil Kumar Singh has, for monetarygains, knowingly caused to be used false declaration u/s 46 of the Act, ibid in thetransaction of import business by way of allowing unscrupulous persons like ShriShahansha Mallik alias Badshah, Shri Navneet Kumar and Shri Arnab Sinha to use hisIEC by way of filing Bills of Entry mis-declaring the description and value of theimported goods therein, much in violatlon of Section 46 of Customs Act, 1962 asdiscussed above with a view to import counterfeit goods which are prohibited underIPR Rules, 2OO7 by concealment among generic import goods. Thus, by his tacitapproval in dealing with the goods imported under instant three consignmentsthrough lending his IEC to unscrupulous persons in the scam of fraudulent import of(i) Mobile Phone Accessories, (ii) Branded Shoes, (iii) Wrist Watches of DifferentInternational Brand, (iv) Branded high-end mobile phones, motherboards/ logic

i!

'?

PaBe 98 of 145

F.No. s33- 23120i7 ADJN (A&A)Vcards/ Accessores kit for branded television sets/ speakers, etc. by concealing them

as generic items w jth total mis-deciared values to the tune of Rs. 9,75,73,185 / -(Rupees Nine Crore Seventy Five Lakh Seventy Three Thousand One Hundred andEighty Five only), Shri Sushil Kumar Singh has rendered the said imported goodsliable to confiscation under relevant provisions of Customs Act, 1962 as discussedabove and consequently made himself also liable for penalty under Section 112(b)(i)of Customs Act,1962. Held so.

58.1.14- Further, I observe that M/s. Sushil Kumar Singh having IEC No.O2O6OL6417 through its proprietor Shri Sushil Kumar Singh has, for monetarygains, knowingly caused to be used false declaration u/s 46 of the Act, ibid in thetransaction of import business by way of allowing unscrupulous persons like ShriShahansha Mallik alias Badshah, Shri Navneet Kumar and Shri Arnab Sinha to use hisIEC by way of filing Bills of Entry mis-declaring the description and value of theimported goods therein, much in violation of Section 46 of Customs Act, 1962 asdiscussed above. Thus, by his tacit approval by lending his IEC to unscrupulouspersons in the scam of fraudulent import of (i) Mobile Phone Accessories, (ii)Branded Shoes, (iii) Wrist Watches of Different International Brand, (iv) Brandedhigh-end mobile phones, motherboards/ logic cards/ Accessories kit for brandedtelevision sets/ speakers, etc. by mis-declaring them as generic items with total mis-declared values to the tune of Rs,9,75,73,1851- (Rupees Nine Crore Seventy FiveLakh Seventy Three Thousand One Hundred and Eighty Five only), Shri SushilKumar Singh has rendered the said imported goods liable to confiscation underrelevant provisions of Customs Act, 1962 as discussed above and consequently madehimself also liable for penalty under Section 114(AA) of Customs Act,1962. Held so.

58.2. Noticee No. (2) - Shri Shahansha Mallik Alias Badshah:

58,2.1, I observe that vide voluntary statement(s) tendered by Noticee No. 01Shri Sushil Kumar Singh u/s 108 of the Customs Act, 1962, he has confessed, inter-a lia, that

58,2.1.1. In May 2017, he had given his IEC to one Shahansha Mallik aliasBadshah who is having a shop in Fancy Market, Khidderpore, Kolkata.

5A.2.L.2, Badshah imported mobile parts and accessories under his IEC. Badshahmet him (Sushil) and asked for his IEC. Initially, when he (Sushil) refused, Badshahtold him that he (Badshah) was having setting with DC, Navneet Kumar at AirportCustoms and Badshah took him to DC Shri Navneet Kumar sometime in May 2017.He met the DC at his offlce at Kolkata Airport and the DC asked him to give his IECto Badshah and also assured him that there would be no problem. Then he gave hisIEC to Badshah. Badshah proposed him a sum of Rs. 15000/- for each consignment.

58.2.1.3. The consignment under the Bill of Entry 9948788 dated 03.06.2017 wasimported using his IEC and these goods were actually imported by Badshah.

58.2.2, I observe that vide voluntary statement(s) tendered by Noticee No. 02Shri Shahansha Mallik Alias Badshah u/s 108 of the Customs Act, 1962, he hasconfessed, inter-alia, that:

58.2.2,L. During his course of business in Fancy Market, Khidderpore in about2015, he used to bring Chinese mobile handsets, mobile accessories from localcouriers.

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F.No. 533' 2312017 AD.IN (A&A)\69,2.2.2. In December 2016, he brought three consignments of rnobile covers,Screen Guards etc. through one Bappa, CHA, working at Kolkata Airport but he didnot know which company's IEC was used for those consignments.

54.2.2.4. Navneet Kumar told them that there would be no problem if they wantto lmport goods through Air cargo. Then he enquired about the CHA, and afterlearning that Nasir was working as CHA, he directed to bring goods like mobilephones, watches, cigarettes by concealment and he also directed that an amount ofRs. 50000 per consignment would be paid to him.

58.2.2.5. The imports were misdeclared so as to make some profit after makingpayments to the Customs Officers and the DC. If the goods were not misdeclaredand the full duty were to be paid on the goods, there would be no profit at all. Thatwas why the consignments were arranged to be cleared without examination as faras possible and was misdeclared not to reveal the contents like watches and high-mobile phones. He paid Rs 1 lakh in cash to DC Shri Navneet Kumar.

5a.2.2.6. He knew one Karan of Mumbai who deals in high end watches andmobiles and asked him whether he could load watches and mobiles in hisconsignment from Hong Kong and for that Karan would be required to pay him Rs100 per watch and Rs 200/- per mobile set. Karan agreed to load about 450 piecesof watches in one carton and 620 mobile phones in two cartons.

58.2.3, I observe that vide voluntary statement(s) tendered by Noticee No. 09Shri Arnab Sinha u/s 108 of the Customs Act, L962, he has confessed, inter-alia,that:

58.2,3.1. Sometime in January February of 2Ol7 one person called him on hismobile No. 9899203809 and introduced himself as Badshah of Khidderpore. He askedfor some IEC lender and in response to this he (Arnab) gave him the name andcontact number of Sushll Kumar Singh.

5A,2,4. From the voluntary statement(s) of Shri Sushil Kumar Singh when readwith the voluntary statement(s) of the Noticee No. 02 himself in conjunction of thevoluntary statement(s) of Shri Arnab Sinha it is evident that beneficial owner (withinthe meaning of section 2 (3A) of the Customs Act, 1962) of the goods importedunder BoE No. 9948788 dated 03.06.2017 was actually Shri Sahansha Mallick(Noticee 02).

58.2.5. This is further corroborated by the my observation vis-a-vis theinventory of the goods as detailed under Panchanama proceedings dated 2t.06.2017I would particularly like to discuss about the Marks and Nos. as observed on thepackages of the impugned goods by the Investigating Authority during examination.

58.2.5.1. To understand the significance of Marks and Nos In a pafticularshipment I rely on various explanations provided online. The concept of Marks andNos. can be summarized as under.

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54.2,2.3, Later during March 2017, when he was about to start importing goods,he came to know that Navneet Kumar was the DC at Airport Cargo and then hecalled him (Navneet) in his mobile no 98300150950 and met him in his office alongwith Sushil Kumar Singh.

58.2.5,3. Basically, it's like a barcode which help to get details about the productsuch as the buyer, location, etc. and helps to serve the stakeholders without fault ata fast pace. It acts as an ID card for someone else.

5a.2.5.4. Marks and numbers can consist of the buyer's name and address,purchase order number or unique number of the package.

58.2.5.5. In this regard, vis-a-vis inventory of goods under BoE No. 9948788dated 03.06.2017 it has been observed that save for 1 package, all the rest 152 outof 153 packages contain the marks as "SM" which are the initials of Shri ShahanshaM a llick.

In the case of GTC Industries Ltd. Vs Commissioner of Customs, New DelhiI2OLL (264) ELT 433 (Tri- Del)1, it has been held, inter-alia, that-

"Evidence in adiudication proceeding need rutl be like lhe one h crintinol coses - Findings in adjudicationbased on preponderance of probability"

5a.2,6. As per discussion supra, I find that Shri Shahansha Mallik AliasBadshah is the beneficial owner for the consignment under BoE No. 9948788 dated03.06.2017 impofted under the IEC of M/s Sushil Kumar Singh who himself hasdeclared voluntarily that he (Sushil) had no idea about the impugned goods and thatthe actual owner of the goods is Noticee No. 2, by under-invoicing the value of theconsignment to the tune of approximately 1/200th times of the actual value.

5a.2,7.L. I find no merit in the submission as Noticee No. 2 had himself statedvoluntarily u/s 108 of the Customs Act, 1962 that in about 2015, he used to bringChinese mobile handsets, mobile accessories from local courlers, which were, attimes, intercepted by the CC(P) officers. In December 2016, he brought threeconsignments of mobile covers, Screen Guards etc. through one Bappa, CHA,working at Kolkata Airpoft. In May 2017, he imported another two consignmentswhere Nasir Uddin worked as CHA on behalf of Sadguru and NAF logistics worked asa freight forwarder for the goods.

58.2.8. I find that Noticee No. 2 vide written submission dated 21.02.2018, hasquestioned the method of valuation of the subject impugned goods. If the noticeehad no link with the subject consignment as submitted vide PH and written defence,he should have focused on proving himself innocent instead of trying to go on a

fishing expedition to figure out the purported flaws in the investigation by DRI. I findthat for a person clalming to be not connected to any EXIM business as discussedsupra, he had shown great interest to understand the basis of valuation methodologyrelied upon by DRL In this regard, I observe that there ls a difference between thedescription of the goods declared and the nature thereof visible to the naked eye.Therefore, mis-declaration of description of the goods is established. Once there ismis-declaration of description, the appellant loses right to raise the plea of overvaluation because fraud vitiates every solemn act. Similar views have been

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F.No.533- 2312017 AD.IN {A&A)-SS.2.5.2. lularks and Numbers are the symbols used to identify differentpieces of cargo on a ship so that there is no problem identifying them at the portand they can be handed over to the correct parties without fail.

5A.2.7. I also find that Noticee No. 2 vide personal hearing dated 22.03.2022had inter alia stated that her had a small shop dealing in purchase / sale of mobilephones made in India and had no connection with EXIM business.

F. No. S33-23/2017 ADtN (A&A)vespoused by the Hon'ble CESTAT, New Delhi in the case of M/s, Duggar Fibre pvt.

Ltd. v/s. C.C., Noida (2014 (4) ECS (268) (Tri-Del))

58.2.9, I find that Noticee No.2 was given first PH on 07.03.2022 at 2.30 p.m.the same was intimated to him at the address as per records available with theDepartment vide letter dated 27.02.2022 with repeated requests to provide thisoffice with his email or contact number for effective and speedy communication.

58.2.1O. I find that vide email dated 07.03.2022, Shri L. Vishal Kumar, Advocateand authorised representative of Noticee No. 2 had prayed for adjournment on thegrounds of late briefing by the Noticee to him (on 07.O3.2022 at about 14:30 hours).I find that Noticee No. 2 has made a mockery of the process of adjudication and hasadopted a desultory approach towards the case by choosing not to brief his counselwell before the PH date.

58.2.11. Based on the evidence and voluntary statements made available beforeme and analysis of conduct of the Noticee No. 2, I conclude that Shri SahanshaMallick alias Badshah is a habitual offender. He had connived with unscrupulousperson like Shri Sushil Kumar Singh (Noticee No.1), Shri Arnab Sinha (NoticeeNo.09), Shri Navneet Kumar (Noticee No. 4) with active suppoft of Customs OfficersShri Vikki Kumar (Noticee No. 5) and Shri Pranabananda Bala (Noticee No. 6) andCHA M/s. Sadguru Forwarders Pvt. Ltd. (Noticee No.3) through their G-Cardemployee Shri Aloke Ghosh (Noticee No. 10) and others and abetted fraudulentlmports in the IEC of aforesaid company. by way of filing two Bllls of Entry No.s9948788 and 9948804 both dated 03.06.2017 and with intention to file another BoEcorresponding to one Air Way Bill No. 21715543404 dated 05.06.2017 by mis-declaring the description and value of the imported goods therein, much in violationof Section 46 of Customs Act, 1962.

54,2,L2. In order to do so, Shri Sahansha Mallick alias Badshah, formonetary gains, has knowingly used IEC of unscrupulous person like Shri SushilKumar Singh for the impugned fraudulent imports, as discussed above. Thus, bythese acts of commission in abetting the scam of fraudulent import of (i) MobilePhone Accessories, (ii) Branded Shoes, (iii) Wrist Watches of Different InternationalBrand, (iv) Branded high-end mobile phones, etc. by mis-declaring them as genericitems with total mis-declared values to the tune of Rs. 7,85,81,8281- (RupeesSeven Crore Eighty Five Lakh Eighty One Thousand Eight Hundred and Twenty EightyFive only), he has rendered the goods imported under BoE No. 9948788 dated03.06.2Ot7 using the identity of Shri Sushil Kumar Singh liable to confiscation undersection 111(d), 111(f), 111(i), 111(l), 111(m) and 119 of the Customs Act, 1962read with Rule 6 of IPR Rules, 2007 for reasons discussed supra; consequentlyhaving made himself liable for penalty under Section 112(a)(i) oF Customs Act,1962.Held so,

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58.2.13. Further, I observe that Shri Sahansha Mallick alias Badshah has, formonetary gains, has knowingly caused to be made false declaration u/s 46 of the Act,ibid in the transaction of import business by way of allowing unscrupulous person likeShri Sushil Kumar Singh to act as the importer with a view to shield himself frompenal provisions of the Customs Act, 1962 by shifting blame to the IEC holder in theevent of detection of his illegal endeavour by the authorities. Thus by dealing withthe mis-declared imported goods in terms of the description and value, much inviolation of Section 46 of Customs Act. 1962 as discussed above with a view toimport counterfeit goods with total mis-declared values to the tune of Rs.7 ,85,81,8281- (Rupees Seven Crore Eighty Five Lakh Eighty One Thousand EightHundred and Twenty Eighty Five only), he has rendered the goods imported under

F. No. 533- 2312017 ADt N (A&A)vBoE No. gg4B78B dated 03.06.2017 using the identity of Shri Sushil Kumar singhliable to confiscation under section 111(d), 111(f), 111(i), 111(l), 111(m) and 119 ofthe Customs Act, 1962 read with Rule 6 of IPR Rules, 2oo7 for reasons discussedsupra; consequently having made himself liable for penalty under Section 112(b)(a)of Customs Act,l962. Held so.

58.2.L4, Further, I observe that Shahansha I\4allik allas Badshah, as revealed bythe investigation as discussed in the foregoing paras, was one of the prominentplayer in this conspiracy. He was in local business but after obtaining a passport, hestarted visiting Hong Kong and bring consumer goods in the form of passengerbaggage. After that he was in the trading business of mobile accessories imported byothers. During the course of such business he came in contact with Shri NavneetKumar while Navneet Kumar was posted in Commissionerate of Customs(Preventive), West Bengal. He started importing mobile accessories and otherconsumer goods from Hong Kong himself though Air Cargo Complex. In December2016 and January 2017, he impofted two consignments of mobile accessoriesthrough Kolkata Airport using some other iECs. He also was in contact with ShriArnab Sinha who provided him the number of Sushil Kumar Singh as he was insearch of a suitable IEC lender. He exploited his earlier connection with NavneetKumar and met him alongwith Sushil Kumar Singh to inform him that he wouldimport through Air Cargo complex on the strength of the IEC of Sushil Kumar Singhand also to inform him that he would be using Nasir Uddin to clear the goods.Navneet in turn asked him to bring mobile phones, watches, cigarettes and for thatasked for Rs 50000 per consignment. He used the connection of one of his friendnamed Nasir, who stays in China to contact the suppliers and he purchased thegoods through Nasir in China and paid the money to Nasir's family in Kolkata. Heknowingly indulged in misdeclarartion and sought an arrangement where the goodswould not be examined by Customs. He paid an amount of Rs 1 lakh in total toNavneet Kumar. From the above. it is apparent that Shahansha Malhk alias Badshahknowlngly Indulged himself in the smuggling ctivities and became part of thesyndicate through which he carried on his dublous plans to smuggle in theundeclared items like high value wristwatches of international brand, high endmobiles etc. in the guise of unbranded shoes, mobile accessories etc in order toevade the proper Customs duty and also under valued the conslgnments knowingly.He further attempted to clear the goods wlthout being examined with the help of thesyndicate indulging in the conspiracy as stated above and in that process used toprepare/ caused to prepare incorrect declaration and the sheets showing thepackages to be examined which was handed over to Nasir Uddin to facilitate theexamination. Thus, Shahansha Mallik alias Badshah had rendered himself liable forpenal action under Section 114AA of the Customs Act, 1962 for his act of omissionand commission. Thus by intentionally causing to be used fabricated invoice andpacking list with a view to impoft the mis-declared imported goods fraudulently,much in violation of Section 46 of Customs Act, 1962 as discussed above with totalmis-declared values to the tune of Rs.7,85,8L,8281- (Rupees Seven Crore EightyFive Lakh Eighty One Thousand Eight Hundred and Twenty Eighty Five only), he hasrendered the goods imported under BoE No. 9948788 dated 03.06.2017 using theidentity of Shri Sushil Kumar Singh liable to confiscation under section 111(d), 111(f),111(i), 111(l), 111(m) and 119 of the Customs Act, 1962 read with Rule 6 of IPRRules, 2007 for reasons discussed supra; consequently having made himself liablefor penalty under Section 114AA of Customs Act,1962. Held so.

58.3. M/s. Sadguru Forwarders Pvt. Ltd. (Noticee No. 3)

5a.3.1. I find that the Notlcee No. 3 is the designated CHA for all the threeimpugned consignments. I observe that although the main office of Noticee No. 3 is

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F.No. S33- 2312017 ADJN (A&A)Yn Mumbai, the Noticee had applied for and received a licence to transact business

under Customs Act, 1962 vis-a-vis consignments landing in Kolkata Customs Zone.

58.3.2. I observe that the initial intelligence gathered by DRI, KZU was focusedon the consignments attempted to clear from Kolkata Air Cargo on beha f of multipleIEC holders mostly based out of New Delhi by the CHA. After completion ofinvestigation, DRI had issued notice to Show Cause u/s 124 of the Customs Act,1962 to 12 such fraudulent IEC holders and 1 courier firm along with other entitieslinked with the imports. I observe that M/s. Sadguru Forwarders pvt. Ltd. hasrepresented all the 12 fraudulent IECS who had attempted to import goodsprohibited under the Customs Act, 1962 and various other allied acts in force in theterritory of India by influencing the Customs officers to abstain from dischargingtheir duty by not discharging their duties in good faith in lieu of monetaryconsideration.

58.3.3. To evade customs scrutiny, the iEC holders, M/s Sushil Kumar Singh inthe instant case, had severely misdeclared the contents of the consignments underBoE Nos. 9948788 and 9948804 both dated 03.06.2017 and AWB No. 21715543404dated 05.06.2017 in terms of description, valuation and quantity. The Noticee hadinter-alia, delegated the work of transacting the business of Kolkata Customs Zone tolate Sukhendu Maity (F-Card holder) and Shri Aloke Ghosh (G-Card holder andNoticee No. 10) by representing the firm and taking job of customs clearance ofgoods imported in Kolkata by IECs.

58,3.5, From the conjoint reading of voluntary statements of late SukhenduIv'laity, Shri Aloke Ghosh and Shri Nasiruddin, I observe that although the buslness ofclearance of contraband goods masterminded by Mumbai based late Mayur Mehtaunder active connivance with Shri Navneet Kumar was brought to M/s. SadguruForwarders Pvt. Ltd. by their G-Card employee Shri Aloke Ghosh in lieu of personalgratiflcation under suggestion of Shri Nasiruddin, the antecedents, identity of theIECs on whose behalf, the clearance job was undertaken (in the instant case beingM/s. Sushil Kumar Singh) and functioning of their clients at their declared address byusing authentic sources in terms of Regulation 11(n) of Customs Brokers LicensingRegulation 2013 was never independently verified by M/s, Sadguru ForwardersPvt, Ltd.

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58.3.4. I observe that from the investigation conducted by DRI, it is evidentthat the entire scam of importing prohiblted goods through Kolkata Air Cargo bymisdeclaring the contents of the consignments under section 46 of the Customs Act,1962 under the patronage of unscrupulous Customs Officers was masterminded bylate Mayur Mehta, based out of Mumbai in cahoots with Shri Navneet Kumar, DeputyCommissioner. I observe that out of all the CHAs working in the Kolkata Customs AirCargo Complex, M/s. Sadguru Forwarders Pvt. Ltd. was chosen to represent thefraudulent IECs after assurance of Navneet Kumar to Shri Nasiruddin, associatedwith M/s. Indo-Foreign Agents Pvt. Ltd., that he (Navneet) himself would befacilitating those im po rts.

58.3.6. i observe that the IEC holder has voluntarily stated u/s 108 of theCustoms Act, 1962 that although M/s Sushil Kumar Singh having IEC no.02060t64L7 had declared main office address at 28, Jhill Road, Cossipur, Kolkata-700002, and branch office(s) at Makan No. D 498, Gali No.4, Rajeev Colony,Old Kundali, Delhi 11OO9a; 9,Old China Bazar Street, 3rd Floor, Room No.43,Kolkata, W.B.7OOOO1; & L126, Ghosh Bagan Lane, Kolkata,W.B,7OOOO2, thebranch offices of the IEC does not exist. When the officers of DRI visited theregistered main address of aforementioned company, no such company(s) was found

F.No. S33- 2312017 ADJN (A&A)Vto be existing at the premises. On the contrary, it was observed that the premtses

was actually an address of a single room apartment in a dilapidated condition.

54.3.7. The Regulation 11(n) makes it mandatory that the CHA has to verifyantecedents, IEC Code, identity of the client, which are obviously the documentaryverifications. However, the Regulation 11(n) does not stop here but adds'.... andfunctioning of his client at the declared address.....'. it is thus clear in unambiguousterms that the CHA'S obligations do not stop merely after verifying genuineness ofKYC documents submitted by the client but the CHA has to ensure that the said clientis actually functioning from the declared address. I find that in the instant case theCHA, by his own admission, had not verified the credentials of M/s Sushil KumarSingh physically. Instead the CHA has relied on credibility of unauthorised person likeNasiruddin who brought the business of the IEC holder to their firm. For all intentsand purposes, it appears that the CHA firm had reposed faith on an unauthorisedperson like Nasiruddin to conduct business on their behalf by acquiring clients andclearing goods in their name. That in the present case, the IEC holder turning out tobe not the actual importer vitiates the CHAs claim of innocence, as no correctivemeasures have been taken by the Noticee No.3 against the alleged errantemployees indicating that the CHA firm had been in the loop from the beginningabout the illegal nature of the job and had given tacit approval to their employeesbased out of Kolkata.

58,3.8. I rely on the judgement in the matter Nazir Ahmed Vs. Emperor on 16thJune 1936. The said decision enunciates the principle that 'if a particular thing isrequired to be done in a particular manner. Then that thing must be done inthat manner only or not at all.'When the Regulation 11 (n) made it obligatory onpart of CHA to ensure functioning of the client from the declared address there is noreason why should not have been done it not done, the CHA had no propriety topresent the documents before the Customs authorities. I am, therefore, inclined andeven constrained to hold that the CHA has utterly failed in fulfilling the obligationcast upon him and the haste and lackadaisical manner displayed by the CHA inprocessing and presenting the export documents in the instant case, cast his roleu nder serious suspicion .

58.3.9. The CHA has acted in a most casual and lackadaisical manner andpresented the goods for import before the customs officers on behalf of an IEClender who had no idea about the contents of the consignments under BoE Nos.9948788 and 9948804 both dated 03.06.2017 and AWB No. 21715543404 dated05.06.2017, thus violating the obligations placed upon the CHA in terms ofRegulation 11(n) of the CBLR 2Ol3.I, therefore, do not find any reason to show anyleniency towards the CHA, as far as the facts and circumstances of the case areconcerned.

58.3.10. I draw attention to voluntary statement dated 22.10.2017 of late MayurMehta wherein it was stated, inter-alia, that during June,2OL7 after DRI raid atACC, Kolkata, he instructed Nasir not to file any further Bil! of Entry inrespect of the cargo lying there and stopped sending him further documents.

58.3.11. I further observe that vide voluntary statement dated 19.07.2017 ofShri Nasiruddin wherein it was stated, inter-alia, that the fact of using the stamp andseal of M/s. Sadguru Forwarder Pvt. Ltd by Nasiruddin for clearance of importconsignments of different parties was known to late Sukhendu Gupta.

58.3.12. These findings prove that the CHA knowingly allowed unscrupulouspeople like Mayur Mehta to orchestrate a scam of import of prohibited and under

SCN: DRI/ KZU/CF/ INT-75/ Pt. Sri Ram/464O dtd 4.72.77 Page 105 of 145

F.No. 533 23l2017 ADJN (A&A)Ynvoiced goods by resorting to misdeclaration u/s 46 of the customs Act, 1962 using

the credentials of IEC lenders to shield actual importers from legal wrangles.

58.3.13. On going through written submission and personai hearing of NoflceeNo.3, I do not find any evidence that any administrative disciplinary proceedingshave been initiated by the parent brokerage firm against the alleged errantemployees viz. Late Sukhendu Maity and Shri Aloke Ghosh.

58.3.14. Instead I observe that Noticee No. 3 had no intention of defending thecharges levelled against them in the Show Cause Notice, but to cast aspersions onDRI by relying on some judgments viz.

i. 2027 (378) E.L.T. 7aL (Cal.) Axis Bank Ltd. Versus PR. Additional DirectorGeneral, DRI, Kolkata;

ii. Final Order No, 50005-50006/2022 in the matter of Customs Appeal No. 50195of 2020 filed by Arun Kumar Agarwal Appellant against The principalCommissioner of Customs (Import), New Customs House, Near IGI, Airport NewDelhi- 110037,

iii. 2O2t (378) E.L.T. 7 (S.C.) Commissioner Of Customs, Kandla Versus AgarwalMetals And Alloys,

iv. Interim judgment dated 12.04.2021 in the matter of Gopal Gupta v/s pr.Additional Director General, DRI, New Delhi;

v. 2021 (377) E.L.T. 486 (Mad.) Quantum Coal Energy (p) Ltd. VersusCommissioner Of Cus., Tuticorin;

vi. Final Order Nos. 4OO02-4O004/2O22 in the matter of Customs Appeal Nos.42416and 42476 of 2015 issued by Hon'ble CESTAT, Chennai etc.

which primarily deal with the issue of jurisdiction of ADG, DRI to issue SCN in termsof the decision of the Hon'ble Supreme Court in the case of Canon India Pvt. Ltd. Vs.Commissioner of Customs reported in 2021 (376) ELT 3 (SC). As multiple Noticeeshave raised the issue of maintainability of the instant SCN with respect to jurisdictionof ADG, DRI under Customs Act, 1962 in the light of the decision of the Hon'bleSupreme Court in the case of Canon India Pvt. Ltd. Vs. Commissioner of Customsreported in 202t (376) ELT 3 (SC), the matter has been dealt separately at Para. 59of the instant order.

58.3.15. Based on the records available before me as discussed, I conclude thatM/s. Sadguru Forwarders Pvt. Ltd. through its employees late Sukhendu Maityand Shri Aloke Ghosh had connived with unscrupulous person like Nasiruddin andlate Mayur Mehta with active support of Customs Officers Navneet Kumar (NoticeeNo.4), Shri Vikki Kumar (Noticee No. 5) and Shri Pranabananda Bala (Noticee No.6)and others and abetted fraudulent imports in the IEC of M/s. Sushil Kumar Singh, byway of filing two Bills of Entry Nos. 9948788 and 9948804 both dated 03.06.2017and with intention to file another BoE corresponding to one Air Way Bill No.21715543404 dated 05.06.2017 by mis-declaring the description and value of theimported goods therein, much in violation of Section 46 of Customs Act, 1962.

5a.3,16. In order to do so, M/s. Sadguru Forwarders Pvt. Ltd. through itsemployees late Sukhendu Maity and Shri Aloke Ghosh against unduegratification allowed unscrupulous persons like Nasiruddin and late Mayur Mehta tofile Bills of Entry Nos. 9948788 and 9948804 both dated 03.06.2017 in the name ofM/s. Sushil Kumar Singh for the impugned fraudulent imports, as discussed above.Thus, by these acts of omission of verifying the antecedents oF importer andcommission in abetting the scam of fraudulent import of (i) Mobile Phone Accessories,(ii) Branded Shoes, (iii) Wrist Watches of Different International Brand, (iv) Branded

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F.No. 533 23l2017 AD.IN (A&A)irigl-l-end mobile phones, motherboards/ logic cards/ Accessories kit for brandedtelevision sets/ speakers, etc. by mis-declaring them as generic items with total mis-declared values to the tune of Rs,9,75,73,185/- (Rupees Nine Crore Seventy FiveLakh Seventy Three Thousand One Hundred and Eighty Five only), knowing aboutthe illegal nature of the goods sought to be imported

a) has rendered the goods imported under BoE No. 9948788 dated 03.06.2017liable to confiscation under section 111(d). 111(f), 111(i), 111(l), 111(m) and119 of the Customs Act, 1962 read with Rule 6 of IPR Rules, 2OO7 for reasonsdiscussed supra;

b) has rendered the goods imported under BoE No. 9948804 dated 03.06.2017liable to confiscation under section 111(d), 111(f), 111(i) and 111(l) of theCustoms Act, 1962 read with Rule 6 of IPR Rules, 2OO7 for reasons discussedsupra; and

58.3.17. Further, I observe that M/s. Sadguru Forwarders Pvt. Ltd. throughits employees late Sukhendu Maity and Shri Aloke Ghosh against unduegratificatlon allowed unscrupulous persons to machinate a scam of importingcontraband by way of filing Bills of Entry mis-declaring the description and value ofthe imported goods therein, much in violation of Section 46 of Customs Act, 1962 asdiscussed above with a view to import counterfeit goods which are prohlbited underIPR Rules, 2007 by concealment among generic import goods. Thus, by tacitapproval by choosing to overlook the errant action of its employees late SukhenduMaity and Shri Aloke Ghosh enable people like Sushil Kumar Singh to lend IEC tounscrupulous persons for perpetrating the scam of fraudulent import of (i) MobilePhone Accessories, (ii) Branded Shoes, (iii) Wrist Watches of Different InternationalBrand, (iv) Branded high-end mobile phones, motherboards/ logic cards/ Accessorieskit for branded television sets/ speakers, etc. by concealing them as generic itemswith total mis-declared values to the tune of Rs.9,75,73,L851- (Rupees Nine CroreSeventy Five Lakh Seventy Three Thousand One Hundred and Eighty Five only), hasrendered the said imported goods liable to confiscation under relevant provisions ofCustoms Act, 1962 as discussed above and consequently made themselves alsoliable for penalty under Section 112(b)(i) of Customs Act,1962. Held so.

58.3.18. Further, I observe that M/s. Sadguru Forwarders Pvt, Ltd. throughits employees late Sukhendu Maity and Shri Aloke Ghosh has against unduegratification, knowingly caused to be used false declaration u/s 46 of the Act, ibid inthe transaction of import business by way of allowing unscrupulous persons like ShriShahansha Mallik alias Badshah, Shri Navneet Kumar and Shri Arnab Sinha to useIEC of Shri Sushil Kumar Singh by way of filing Bills of Entry, mis-declaring thedescription and value of the imported goods therein, much in violation of Section 46of Customs Act, 1962 as discussed above. Thus, by tacit approval by lending his IECto unscrupulous persons in the scam of fraudulent import of (i) Mobile PhoneAccessories, (ii) Branded Shoes, (iii) Wrist Watches of Different International Brand,(iv) Branded high-end mobile phones, motherboards/ logic cards/ Accessories kit forbranded television sets/ speakers, etc. by mis-declaring them as generic items withtotal mis-declared values to the tune of Rs. 9,75t73,L851- (Rupees Nine CroreSeventy Five Lakh Seventy Three Thousand One Hundred and Eighty Five only), M / s.

SCN: DRI/ KZU /CF/INT-75/PI. Sri Ram/464O dtd 4.72.77

c) has rendered the goods imported under AWB No. 277 75543404 dated05.06.2017 liable to confiscation under section 111 (d), 111 (D and 119 ofCustoms Act, 1962 read with Rule 6 of IPR Rules, 2007, consequently havingmade himself liable for penalty under Section 112(a)(i) of Customs Act,1962.Held so.

Page 107 of 145

F.No. S33 2312017 ADIN (A&A)\6adguru Forwarders Pvt. Ltd. has rendered the said imported goods liable toconfiscation under relevant provisions of Customs Act, 1962 as discussed above andconsequently made themselves also liable for penalty under Section 114(AA) ofCustoms Act,7962. Held so.

58.4. Shri Navneet Kumar ( Noticee No, 4)

58.4.1, From the voluntary statements u/s 108 of the Noticees, examinationreport of consignments under BoE Nos. 994BB7B and 9948804 both dated03.06.2017 and AWB No. 21715543404 dated 05.06.2017, Call data records andother relied upon documents placed before me I observe that Sh. Navneet KumarDeputy Commissioner, Air Cargo Complex, NSCBI Airport, Kolkata was one of thekey cogs in the scam of the large scale evasion as masterminded by Late Shri MayurMehta.

58.4.2. From the available call data records I observe that he actively aided andconnived with Shri Mehta and was one of the main enablers for perpetrating theoffence. He was in constant contact with the importers/ beneficiaries of the IECs andasked them to bring misdeclared goods through Kolkata Airport assuring them therewould be no problem in clearance as he would be supervising the clearances throughhis trusted coterie of officers, namely Shri Pranabananda Bala and Vikki KumarAppraiser.

58.4.3. I observe that Shri Navneet Kumar, being incharge of Import AppraisingGroup, Import Shed, etc. had no official business to be in touch in Shri Mayur Mehtaan individual based out of Mumbai (Call data record suggests that first tangibleevidence of communication between Navneet Kumar and Mayur Mehta was anoutgoing call made by Shri Navneet Kumar to Shri Mehta on 8.03.2017). As ShriNasiruddin also did not have any authorisation to work in capacity of a licensedCustoms Broker, Shri Navneet Kumar had no official business to be in touch with ShriNasiruddin also. (Call data records reveal that Shri Navneet Kumar had called ShriNasiruddin 35 times from his mobile No. 9830050950 in the period from Aptil,2017to June, 2017)

5a.4.4,L, Though he do not have any office at Kolkata, he controlled importconsignments of several importers of Delhi and Noida through Air Cargo Complex,NSCBI Airport, Kolkata. The importers whose impoft consignments were handled byhim through ACC, Kolkata by using the license of Sadguru Forwarders Pvt. Ltd, usedto import goods through ACC, Delhi, which were handled by his own Customs Brokerfirms but as during March, 2017 clearance through ACC, Delhi became problematicdue to strict vigil of Customs Department, he planned to shift to some other port andhad chosen Kolkata as the then Deputy Commissioner, Air Cargo Complex, Kolkata(Navneet Kumar) was known to him;

58.4.4.2. The Deputy Commissioner (Navneet Kumar) Instructed him to importmis-declared goods through Air Cargo Complex, Kolkata and had introduced him withone Sajal Das for helping in clearance of such misdeclared goods; Sajal Dasintroduced him to said Nasir Uddin and told him that Nasir Uddin will assist him inclearance of such misdeclared goods by using the license of Sadguru Forwarders Pvt.Ltd. ;

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5A.4.4. From the voluntary statement(s) of late Mayur Mehta dated 22.t0.2OL7 ,it has been gathered, inter-alia that:

5A.4.4.4. One of his trusted employee, named Ms. Swati Vora alias Monika, whowas also a Director of 1.4/s Om Trans Cargo Freight Pvt. Ltd, used to send the originaldocuments indicating the packets which should be opened for examination to NasirUddin by email from his office and Nasir used to supply those documents to the saidDeputy Commissioner (Navneet Kumar) and as per his (DC's) instruction only thosepackets marked as to be opened for examination were opened by the EO, Appraiserof ACC Kolkata;

5a.4.4.5. He had bribed the said Deputy Commissioner with heavy amounts, forclearance of the mis-declared consignments;

58.4.4.6. Monika used to send the mails mainly from the email id.mak.china@live.com and sometimes from dlfferent emails created in the names ofthe importers;

58.4.5. I observe that specific information was received in the office of DRI,KZU to the effect that some firms were engaged in import of different contrabandand high valued items from Dubai and Hong Kong resorting to undervaluation andmisdeclaration through ACC, Kolkata and some simllar consignments landed at ACCKolkata were waiting for clearance from Customs. Intelligence further indicated thatthe CHA, M/s. Sadguru Forwarders Pvt. Ltd was actively conniving with theunscrupulous flrms to defraud the exchequer and bypass the Law of the land.

58,4.5. In this regard, when DRI officers visited the premises at Kolkata AirCargo on 05.06.2017, a total of 16 consignments related to 12 IEC holders all beinghandled by the CHA M/s. Sadguru Fowarders Pvt. Ltd. were pending for clearance atthat time were seized by DRI as m is-d ecla rations were observed in all theconsignments. Out of the 16 consignments, 3 consignments are dealt with in thisShow Cause Notice.

5A,4.7, I further observe from the voluntary statements of Shri Aloke Ghosh,Shri Nasiruddin and Shri Mayur Mehta that Navneet Kumar under connivance withlate Mayur Mehta fixed Shri Nasiruddin as a front man to handle all the consignmentsrelated to IECs handled by Shri Mehta. Navneet Kumar had dlrected Nasiruddin toarrange a Customs Broker who could be relied upon for handling such illegalconslgnments against undue gratification while he (Navneet) could pull the stringsfrom behind the scenes. Nasiruddin had stated that the first import consignmenthandled by him under this arrangement with Navneet Kumar was either of M/sWish Sales Corporation or Raghav International.

58.4.8. I observe that during the search conducted at the premises of ShriNavneet Kumar by DRI officers, some incrlminating documents and articles wererecovered which included four pages print-outs marked as "Wish Sales 59 Ctn" and"Whish Sales 117 Ctn". in which package nos. with mark, items and weight werementioned and against some packages "TO OPEN FOR INNSPECTION" was mentioned.These four pages'printout indicated details of two import consignment of M/s. WishSales Corporation of Delhi and which contained references of certainpackets/packa ges, which were not to be opened during examination by Customs atACC Kolkata.

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F. No. S33- 2312017 ADIN (A&A)vS8.+.+.3. It was also planneo that he would be sending the original packing listsand invoices to Nasir Uddin, indicating the packets which should be opened forexamination. then Nasir Uddin would give it to the said Deputy Commissioner ofCustoms (Navneet Kumar) who would in turn instruct his subordinates to open thosepackets only during examination;

bsaATE SJ

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F.No. S33 2312017 ADIN (A&A)

58.4.10. I observe from the analysis of records available in EDI system that thetwo BoE Nos. 9948788 and 9948804 both dated 03.06.2017 were released by DCNavneet Kumar in charge of Group Assessment on 03.06.2017 at 3.01 pm forpayment of Customs Duty, without raising any query. In this regard, I have alsoobserved that out of the 16 consignments whose clearance was stopped by DRI, KZUon 05.06.2017, only for those consignments which had been filed on 05.06.2017 hadShri Navneet Kumar given query. No query had been given to those consignmentswhich had been filed before 05.06.2017. It seems that from the events thattranspired, the queries posed by Shri Navneet Kumar to the importers were nothingbut last ditch effort to show his bona fide nature after getting wind of DRI'sintervention in an attempt to escape legal ramifications by invoking section 155 ofthe Customs Act, 1962.

58.4.11. From the voluntary statements of Shri Vikki Kumar,Appraiser & ShriPranabananda Bala, Examiner of Import Shed, ACC, it is learnt that Shri NavneetKumar used to involve himself mainly at two stages of a Bill of Entry handled byNasiruddin (BoE Nos. 9948788 and 9948804 dated 03.06.2017 in the instant case).

Shri Navneet Kumar on receipt of the information regarding which carton numberswere to be opened for examination from Nasiruddin, (originally forwarded by ShriMayur Mehta through his trusted employee Miss Swati Vora via email to Nasiruddin),would specifically instruct his trusted officers Shri Pranabananda Bala and Shri VikkiKumar to examine those specific cartons only and not any other ones so that theycould clalm innocence and escape liability as co-conspirator( s), if the goods wereintercepted at a later stage by any agency (in this case being DRI).

B. Stage 2: After examination:

When DRI officers intervened on 05.06.2017 at around 4 pm, Gate Pass No.N201706050070 w.r.t consignment under Bill of Entry No. 9948788 dated03.06.2077 filed by M/s. Sushil Kumar Singh was already issued by AAI, CargoTerminal, NSCBI Airport at 3.59 pm on 05.06.2017 indicating Customs Clearance forthe consignment had been given. As per EDI records, only examination report of thegoods had been entered in the system at 3.25 pm. When the Importer copy of theBoE was recovered by the DRI from Shri Aloke Ghosh, it was observed thatexamination report was entered and signed by Shri Bala and Shri Vikki Kumar on thehard copy and the same bore the signature (duly verified by DRI from the Institute ofGraphology, Kolkata) of Shri Navneet Kumar on 05.06.2017 with the instructaon"Manual release" which was recognised by Shri Vikki Kumar, Appraiser(Noticee No. 5) & Shri Pranabanda Bala, Examining Officer (Noticee No.6).

I observe that while the BoE was referred to Shri Navneet Kumar in charge ofGroup Assessment on 03.06.2017 and was released from his queue on the same day,the said BoE was not required to be examlned in his presence, neither as per RMSinstruction nor as per Appraising Group's instruction. Shri Navneet Kumar also hasnot been able to produce the approval of the competent authority regarding issuanceof Manual Out of Charge order vis-a-vis subject consignment which is in violation

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58,4.9, I find that Md. Nasir Uddin identified these documents and also stated inhis statement dated 09.06.2017 that these inspection instruction of M/s. Wish SalesCorporation of Delhi was sent to his e-mail by said Monika Vora and after he took outthe print copies, he handed it over to Navneet Kumar.

A. Stage 1: Before examination:

3q;

l.No. 533. 23l2017 ADJN (A&A)of Board's instructions issued vide F. No. 4o1laL/ zOLt dated O4.O5.2O17read with corrigendum dated 12.O5.2O11 and further instruction No.06 / 2Ol7-Customs dated 2nd )une,2OL7.

I also find that vide voluntary statement dated 06.06.2017 and Ot.A6.2017,Shri Pranabananda Bala stated, inter alia that, in respect of all the consignmentshandled by the Customs Broker, M/s Sadguru Forwarders Pvt, Ltd andcleared in recent past they were all ordered for manual out of charge by DCImport Shed, irrespective of whether the EDI system was working or wasout of order,

54.4,L2. So the signature of Shri Navneet Kumar on the hard copy of BoE No.9948788 dated 03.06.2017 proves that Shri Navneet Kumar had involved himselfunnecessarily with ulterior motive to get the impugned goods out oF customs controlas swiftly as possible without following Rules and regulations. This Modus operandi ofgiving manual out of charge and entering the repot of the same on EDI system lateron has been observed on other BoEs involving different IECs, which have been seizedby DRI in congruence with the three subject consignments.

58.4.13. I observe that this modus operandi was deviced specifically to pleadinnocence if and when any such consignment was seized by any agency outsidecustoms examination area by claiming that the goods were removed from Customsarea illegally as clearance for the same had not been given in EDI system.

58.4.14. From the voluntary statement of Shri Sushil Kumar Singh it is evidentthat beneficial owner (within the meaning of section 2 (3A) of the Customs Act, 1962)of the goods imported under BoE No. 9948804 dated 03.06.2017 was actually ShriNavneet Kumar (Noticee 04).

58.4.15. This is further corroborated by the my observation vis-a-vis theinventory ofthe goods as detailed under Panchanama proceedings dated 22.06.2017.I would particularly like to discuss about the Marks and Nos. as observed on thepackages of the impugned goods by the Investigating Authority during examination.

58.4.15.1. To understand the significance of Marks and Nos in a particularshipment I rely on various explanations provided online. The concept of Marks andNos. can be summarized as under.

58,4.15.3. Basically, it's like a barcode which help to get details about the productsuch as the buyer, location, etc. and helps to serve the stakeholders without fault ata fast pace. It acts as an ID card for someone else.

58.4.15,4. Marks and numbers can consist of the buyer's name and address,purchase order number or unique number of the package.

58.4.15.5. In this regard, vis-a-vis inventory oF goods under BoE No. 9948788dated 03.06.2017 it has been observed that 17 out of 110 packages contain themarks as "NK" which are the initials of Shri Navneet Kumar.

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58.4.15.2. Marks and Numbers are the symbols used to identify differentpieces of cargo on a ship so that there is no problem identifying them at the portand they can be handed over to the correct parties without fail.

58,4,16. I also observe that during the course of investigation Shri NavneetKumar had not cooperated with the Investigative Authority by

F.No. S33 2312017 AD.rN (A&A)

a. avoiding sumTnons issued to him on 13.06.2017, 74.06.2017, 15.06.2077,27 .06.2077 & 29 .06 .2077 .

b. Instructing Shri Nasiruddin to remove evidence by deleting the whatsappmessages between Navneet Kumar and him.

c. Instructing Shri Nasiruddin to flee from the premises of Air Cargo Complex05.06.2017 on when DRI oFficials visited the premises and advised him to notshow up before DRI officials.

d, Disowning his order of manual release with dated signature on the face of hardcopy of BoE No. 9948744 dated 03.06.2017 (the authenticity of signature wasduly verified by DRI with the Director of Institute of Graphology, Kolkata whichcontradicted Shri Navneet Kumar's claim)

5a.4.17. As the Noticee had not acted in good falth in discharging his dutiesowing to reasons discussed supra, he is not entitled to protection under section155 of the Customs Act, 1962.

58.4.18. I also observe that Shri Navneet Kumar had preferred to file a WritPetition against the said SCN and others vide W. P. No. 3336(W) to 3348 of 2018dated t2.O2.2018 before the Hon'ble High Court, Calcutta with a plea to dismiss theSCN on grounds of jurisdiction which ultimately has been dismissed by the AppellateCourt in favour of the Department.

58.4.19. I observe that despite having the opportunity to plead his case beforeme after issuance of the SCN, Shri Navneet Kumar had no intention of defending thecharges levelled against him In the Show Cause Notlce first but had focused oncasting aspersions on DRI on jurisdictional aspect.

5a.4,21. I find that Section 124 of the Customs Act, 1962 is for the issuance ofShow Cause Notice before confiscation of goods or imposition of penalty etc. on anyperson. It does not pose restriction on the type of person to whom the noticeu/s 124 can be issued.

58.4.22. Also in the instant case Navneet Kumar has been shown to be the actualowner of the Conslgnment under BoE No. 9948804 dated 03.06.2017, as discussedearlier.

Page 772 of 145

58.4.20. Regarding submission by the Noticee that as he is not theim porter/exporter/CHA/Beneficia I owner of the goods SCN u/s 124 of the CustomsAct, 1962 cannot be issued against him. He has acted in officlal capacity & protectionu/s 155 of the Customs Act, 1962 is available, I enumerate my observations asu nde r:

5a.4.23, Based on the records available before me as discussed, I conclude thatShri Navneet Kumar had connived with unscrupulous person like Nasiruddin and lateMayur Mehta with active support of Customs Officers Shri Vikki Kumar (Noticee No. 5)and Shri Pranabananda Bala (Noticee No.6) and others and abetted fraudulentimports in the IEC of M/s. Sushil Kumar Singh, by giving approval to file two Bills ofEntry Nos. 9948788 and 9948804 both dated 03.06.2017 and with intention to fileanother BoE corresponding to one Air Way Bill No. 21715543404 dated 05.06.2017by mis-declaring the description and value of the imported goods therein, much Inviolation of Section 46 of Customs Act, 1962.

5a.4,24. In order to do so, Shri Navneet Kumar agalnst undue gratificationallowed unscrupulous persons like Nasiruddin and late Mayur Mehta to file Bills ofEntry Nos. 99487 BB and 9948804 both dated 03.06.2077 in the name of M/s. Sushil

SCN: DRI/ KZU /CF/INT-75/ Pt. Sri Ram/464O dtd 4.72.77

F.No. S33 2312017 AD]N (A&A)Kumar Singh for the lmpugned frauouient imports, as dtscussed above. Thus, bythese acts of omission and commission as discussed above in abetting the scam offraudulent import of (i) lv'lobile Phone Accessories, (ii) Branded Shoes, (iii) WristWatches of Different International Brand, (iv) Branded high-end mobile phones,motherboards/ logic cards/ Accessories kit for branded television sets/ speakers, etc.by mis-declaring them as generic items with total mis-declared values to the tune ofRs,9,75,73,185/- (Rupees Nine Crore Seventy Five Lakh Seventy Three ThousandOne Hundred and Eighty Five only), knowing about the illegal nature of the goodssought to be imported

a) has rendered the goods imported under BoE No. 994B7BB dated 03.06.2017liable to confiscation under section 111(d), 111(f), 111(i), 111(l), 111(m) and119 of the Customs Act, 1962 read with Rule 6 of IPR Rules, 2007 for reasonsdiscussed su pra;

c) has rendered the goods imported under AWB No. 21715543404 daled05.06.2077 liable to confiscation under section 111 (d), 111 (f) and 119 ofCustoms Act, 1962 read with Rule 6 of IPR Rules, 2007, consequently havingmade himself liable for penalty under Section 112(a)(i) of Customs Act,1962.Held so.

58.4.25. Further, I observe that Shri Navneet Kumar against unduegratification allowed unscrupulous persons to machinate a scam of importingcontraband by way of filing Bills of Entry mis-declaring the description and value ofthe imported goods therein, much in violation of Section 46 of Customs Act, 1962 asdiscussed above with a view to lmport counterfeit goods which are prohibited underIPR Rules, 2007 by concealment among generic import goods. Thus, by tacitapproval by choosing to enable people Iike Sushil Kumar Singh to lend IEC tounscrupulotrs persons including himself for perpetrating the scam of fraudulentimport of (i) Mobile Phone Accessories, (ii) Branded Shoes, (iii) Wrist Watches ofDifferent International Brand, (iv) Branded high-end mobile phones, motherboards/logic cards/ Accessories kit for branded televlsion sets/ speakers, etc. by concealingthem as generic items with total mis-declared values to the tune of Rs.9,75,73,L851- (Rupees Nine Crore Seventy Five Lakh Seventy Three Thousand OneHundred and Eighty Five only), has rendered the said imported goods liable toconfiscation under relevant provisions of Customs Act, 1962 as discussed above andconsequently made himself also liable for penalty under Section 112(b)(i) ofCustoms Act,1962. Held so,

5a.4.26. Further, I observe that Shri Navneet Kumar has against unduegratification, knowingly caused to be used false declaration u/s 46 of the Act, ibid inthe transaction of import business by way of allowing unscrupulous persons to useIEC of Shri Sushil Kumar Singh by way of filing Bills of Entry, mis-declaring thedescription and value of the imported goods therein, much in violation of Section 46of Customs Act, 1962 as discussed above and has rendered the said imported goodsliable to confiscation under relevant provisions of Customs Act, 1962 as discussedabove and consequently made himself also liable for penalty under Section 114(AA)of Customs Act,1962. Held so.

58.5. Shri Vikki Kumar (Noticee No. 5)

Page 113 of 145

b) has rendered the goods imported under BoE No. 9948804 dated 03.06.2017liable to confiscation under section 111(d), 111(f), 111(i) and 111(l) of theCustoms Act, 1962 read with Rule 6 of IPR Rules, 2007 for reasons discussedsupra; and

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F.No. 533- 23l2C17 ADIN (A&A)

58.5.2, I observe that Shri Vikki Kumar06.06.2077, 13.06.2017 had stated that

vide voluntary statement(s) dated

5a.5.2.1. he had given manual out of charge in respect of 4 Bills of Entry handledby the Customs Broker M/s Sadguru Forwarders Pvt. Ltd. with the permission of DCImport Shed.

58.5.2.2, In some cases manual out of charge orders were given by DC as per therequest of CHA. However, he did not know the reasons;

58.5.2,3. In respect of all the cases after giving manual out of charge, they usedto enter Out of Charge in the EDI system on the same date or the next day; They didnot enter the fact of manual out of charge given in respect of any Bill of Entry in theEDI system

58.5.2.4. Most of the consignments cleared by M/s Sadguru Forwarders Pvt. Ltdwere directly supervised and managed by the then DC Navneet Kumar. For clearanceof their (Sadguru) consignments, Navneet Kumar intimidated Shed officers. So far herecalled certain consignments of the importing firms, namely, Yash International,Surya International, Pasific Enterprises, Biswas Enterprises, S. R. Solutions, Jash-Insha Exports Pvt. Ltd, Sri Ram Traders, Lotus Impex and some other importershandled by M/s Sadguru Forwarders Pvt. Ltd were ordered for manual release by theDC. During examination those packets presented by the CHA were opened andexamined only.

58.5.3. I find that vide voluntary statement dated 23.06.2017, Shri Vikki Kumarconfessed inter-alia that manual OOC was given with respect to BoE No. 9948788dated 03.06.2017.

58.5.5. Shri Nasiruddin vide voluntary statement(s) dated 09.06.2017 and10.06.2017 had stated, inter-alia, that after receiving the mails of Monika about thecartons to be opened, he handed over the print outs of the mails to Navneet Kumarwho would inform him that Mr. Pranabananda Bala and Mr. Vikki Kumar wouldbe given instruction not to open any carton other than those are mentionedin the list. Accordingly, no other caftons were opened by the EO and Appraiserduring examination.

58,5.6. I further observe that although Vikki Kumar had stated that ShriNavneet Kumar had intimidated him with regard to giving manual Out of Charge forthe conslgnments related to M/s Sadguru Forwarders Pvt. Ltd. But the Noticee hasnot reported any such incident to higher authorities.

58.5.7. I also observe that Board's instructions issued vide F. No.4OL|aL|zOL1 dated O4.O5.2OL7 read with corrigendum dated 12.05.2011and further instruction No, O6lzolT-Customs dated 2nd June, 2017 has

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58.5.1. I observe that Shri Vikki Kumar is one of the Customs Officers who wasentrusted with the job of giving Out of Charge for the contraband goods imported byIEC name lenders whose consignments were handled by M/s. Sadguru ForwardersPvt. Ltd.

58.5.4. I observe from the Call Data Records that Shri Vikki Kumar was incontact with Shri Nasiruddin and Shri Sajal Das.

Page 114 of 145

F.No. S33 2312017 AD.rN (A&A)

been issued and uploaded on the official website of CBIC and it is the dutyof an Appraiser of Customs working in Shed to know about the same,

58.5,8, Blindly following the orders of a superior officer continuously withoutverifying whether the officer has the authority to issue the same when the order sogiven was a deviation from the standard practice, is a dereliction of duty on part ofthe Appraiser. Moreover, Shri Vikki Kumar could not adduce any evidence withrespect to the allegation of intimidation by Shri Navneet Kumar.

58.5.10. I observe that as an Appraiser, Shri Vikki Kumar was also responsiblefor supervising the work of Shri Pranabananda Bala, Examiner which he did not do inthe instant case. I also observe that as per voluntary submission of Shri Nasiruddln,Shri Vikki Kumar, along with Shri Navneet Kumar and Shri Pranabananda Bala hadadvised him (Nasir) to flee the Air Cargo Premises on 05.06.2017 when DRI officialshad come acting upon the intelligencel also observe that as per voluntarysubmissionof Shri Nasiruddin, Shri Pranabananda Bala, along with Shri NavneetKumar and Shri Vikki Kumar had advised him (Nasir) to avoid the DRI investigation,effectively aiding and abetting a co-conspirator to escape justice. Hence I concludethat Shri Vikki Kumar cannot be given protection under section 155 of theAct, ibid as the findings suggest he has not discharged his duty in a bona fidema n ner.

58.5.11. Based on the records available before me as discussed, I conclude thatShri Vikki Kumar, being handpicked by Shri Navneet Kumar, Deputy Commissioner,was involved in almost all of the misdeclared consignments clearances of which werehandled by M/s. Sadguru Forwarders Pvt. Ltd. Shri Vikki Kumar, further, in completeviolation of the CBIC's Circular, had also given manual out of charge in many of suchmisdeclared conslgnments (BoE No. 9948788 dated 03.06.2017 of the instant casebeing one them) as ordered by Shri Navneet Kumar, Deputy Commissioner. Theofficer had subverted the requirement of the EDI system by way of issuing suchmanual out of charge order. He used to enter the data later in the system after theconsignments were cleared from the Air Cargo complex leaving no scope for thedetection of the misdeclared consignments by any preventive agency.

58.5.12. It also appears that similar modus operandi would have been adoptedby them in respect of BoE No.9948804 dated 03.06.2017 and consignment under AirWay Bill No, 21715543404 dated 05.06.2017 also, had they been placed before himfor appraisement. However, for the intervention of DRI, the concerned arm of the

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58.5.9. I find that as per Shri Pranabananda Bala's voluntary submission dated13.06.2077 that Shri Vikki Kumar was privy to the selective examination instructiongiven by Shri Navneet Kumar vis-a-vis import conslgnments cleared by M/s. SadguruForwarders Pvt. Ltd. as he used to accompany him (Bala) to DC's chamber to receivethe examination instructions. Shri Bala also had stated that during his tenure asExaminer, the Appraiser used to be along side him during examination of groupassessed Bill of Entry. In this regard, I refer to the Panchanama proceedings dated21.06.2077 regarding 1007o examination of consignment imported under BoE No.9948788 dated 03.06.2017 and Import Documents obtained from the CHA andinformation retrieved from Customs EDI system. it was seen that the said BoE wasfound assessed, examined as per examination instruction to examine 5olopackages and given OOC by Customs on 05.06.2017 before intervention byDRI, KZU. During the 1009o examination by DRI, KZU it was recorded in thePanchanama proceeding that only two packages out of 153 were found to have beenopened earlier which is lesser than what the Assessment Group had ordered i.e.5%= B in the Examination order.

F.No. S33 2312017 ADJN (A&A)

syndicate, represented by Nasir Uddin and Aloke Ghosh at ACC, Kolkata could nevermake arrangements for placing these consignments for examination.

58.5.13. Further even being Customs officers and having the onus to save thecountry's economic security, he acted in a reckless manner without caring for theguidelines and instructions of the CBIC and the Commissioner, and actively aided andabated the dubious design of their Deputy Comm,ssioner in perpetrating such a largescale smuggling of high value contraband goods through Air Cargo complex, Kolkata.All this has been done with an aim for personal gain at the expense of Govt.Exchequer. It was very well within his knowledge that the goods already beencleared or being attempted to be cleared (in the instant case) by them are smuggledinto India and are liable to confiscation under the provisions of the Customs Act andhis acts were actually tantamount to be smuggling, yet, he subverted the Customsmachinery in order to facilitate the clearance of such goods and therefore agalnstundue gratification enabled unscrupulous persons like Nasiruddin and late MayurMehta to file Bills of Entry Nos. 9948788 and 9948804 both dated 03.06.2017 in thename of M/s. Sushil Kumar Singh for the impugned fraudulent imports, as discussedabove. Thus, by these acts of omission and commission as discussed above inabetting the scam of fraudulent import of (i) Mobile Phone Accessories, (ii) BrandedShoes, (iii) Wrist Watches of Different International Brand, (iv) Branded high-endmobile phones, motherboards/ logic cards/ Accessories kit for branded televisionsets/ speakers, etc. by mis-declaring them as generic items with total mis-declaredvalues to the tune of Rs. 9,75,73,185/- (Rupees Nine Crore Seventy Five LakhSeventy Three Thousand One Hundred and Eighty Five only), knowing about theillegal nature of the goods sought to be imported. Shri Vikki Kumar

a) has rendered the goods imported under BoE No. 9948788 dated 03.06.2017liable to confiscation under section 111(d), 111(f), 111(i), 111(l), 111(m) and119 of the Customs Act, 7962 read with Rule 6 of IPR Rules, 2OO7 for reasonsdiscussed supra;

c) has rendered the goods imported under AWB No. 217L55434O4 dated05.06.2017 liable to confiscation under section 111 (d), 111 (f) and 119 ofCustoms Act, 1962 read with Rule 6 of IPR Rules, 2007, consequently havingmade himself liable for penalty under Section 1f2(a)(i) of Customs Act,1962.Held so.

58.5,14. Fufther, I observe that Shri Vikki Kumar against undue gratificationallowed unscrupulous persons to machinate a scam of importing contraband by wayof filing Bills of Entry mis-declaring the description and value of the imported goodstherein, much in violation of Section 46 of Customs Act, 1962 as discussed abovewith a view to impoft counterfeit goods which are prohibited under IPR Rules, 2007by concealment among generic import goods. Thus, by tacit approval bychoosing to enable people like Nasiruddin and late N4ayur Mehta to lend IEC tounscrupulous persons including Shri Navneet Kumar for perpetrating the scam offraudulent import of (i) Mobile Phone Accessories, (ii) Branded Shoes, (iii) WristWatches of Different International Brand, (iv) Branded high-end mobile phones,motherboards/ logic cards/ Accessories kit for branded television sets/ speakers, etc.by concealing them as generic items with total mis-declared values to the tune of Rs.9,75,73,L851- (Rupees Nine Crore Seventy Five Lakh Seventy Three Thousand One

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b) has rendered the goods imported under BoE No. 9948804 dated 03.06.2017liable to confiscation under section 111(d), 111(f), 111(i) and 111(l) of theCustoms Act. 1962 read with Rule 6 of IPR Rules, 2007 for reasons discussedsupra; and

F.No. 533 2312017 AD.IN (A&A)Hundred and Eighty Five only), has rendered the said imported goods liable toconfiscation under relevant provisions of Customs Act, 7962 as discussed above andconsequently made himself also liable for penalty under Section 112(b)(i) ofCustoms Act,1962. Held so,

54.5.15. Further, I observe that Shri Vikki Kumar has against unduegratification, knowingly enabled the usage of false declaration u/s 46 of the Act, ibidin the transaction of import business by way of enabling unscrupulous persons to useiEC of Shri Sushil Kumar Singh by way of filing Bills of Entry, mis-declaring thedescription and value of the imported goods therein, much in violation of Section 46of Customs Act, 1962 as discussed above and has rendered the said imported goodsliable to confiscation under relevant provisions of Customs Act, 1962 as discussedabove and consequently made himself also liable for penalty under Section 114(AA)of Customs Act,1962. Held so.

58.6. Shri Pranabananda Bala (Noticee No.6)

58.6.1. I observe that Shri Pranabananda Bala is one of the Customs Officerswho was entrusted with the job of examination of the contraband goods imported byIEC name lenders whose consignments were handled by M/s. Sadguru ForwardersPvt. Ltd.

58.6.2. I observe that Shri Bala vide voluntary statement(s) dated 06.06.2017and 07.06.2017 had stated, inter-alia, that:

58.6.2.1. He followed the order of DC Import Shed regarding manual order of outof charge. He was not aware as to why DC Import Shed gave such manual out ofcharge order. He did not know whether any permission for manual out of charge wasgiven by the Commissioner of Customs or not.

5A.6.2.2. In respect of all the consignments handled by the Customs Broker, M/sSadguru Forwarders Pvt. Ltd and cleared in recent past they were all ordered formanual out of charge by DC Import Shed, irrespective of whether the EDI systemwas working or was out of order;

58.6.3.1. As per written direction of DC Navneet Kumar on the hard copy of theBills of Entry, he used to examine the goods in the presence of Appraiser and afterexamination he gave manual examination report;

58.6.3.2. He used to update regularly in the EDI system. However, while updatingthe EDI system he never mentioned that manual report was also given; He alsoreiterated that as per order of DC Shri Navneet Kumar, only he had examined thecartons placed by the CHA;

58.6.4. I observe from the Call Data Records that Shri Bala was in contact withShri Nasiruddin and Shri Sajal Das.

5a.6.5. Shri Nasiruddin vide voluntary statement(s) dated 09.06.2017 and1O.06.20L7 had stated, Inter-alia, that after receiving the mails of Monika about thecartons to be opened, he handed over the print outs of the mails to Navneet Kumarwho would inform him that Mr. Pranabananda Bala and Mr. Vikki Kumar wouldbe given instruction not to open any carton other than those are mentioned

Page 1\7 of L45

58.6.3. Further vide his voluntary statements recorded under Section 108 of theCustoms Act, 1962 on 29.06.2077 and 13.07.2017 he stated, inter alia, that;

SCN: DRI/ KZU /CF/INT-7,/ Pt. Sri Ram/464O dtd 4.72.77

in the list. Accordingly,during examination.

F.No. S33 2312017 ADIN (A&A)

no other cartons were opened by the EO and Appraiser

5a.6.6. I further observe that unlike Shri Vikki Kumar who had stated that ShriNavneet Kumar had allegedly intimidated him with regard to giving manual Out ofCharge for the consignments related to M/s Sadguru Forwarders Pvt. Ltd. Shri Balahad not spoken about any such intimidation by Shri Navneet Kumar implying that hewas in accord with the Deputy Commissioner from the beginning and did not needany persuasion.

5A.6,7. I also observe that Board's instructions issued vide F. No.4OllaLl2OLl dated O4.O5.2OL7 read with corrigendum dated 12.05.2011and further instruction No, 06/2017-Customs dated 2nd June, 2017 hasbeen issued and uploaded on the officia! website of CBIC and it is the dutyof an Examiner of Customs working in Shed to know about the same.

58.6.8. Bllndly following the orders of a superior offlcer continuously withoutverifying whether the officer has the authority to issue the same when the order sogiven was a deviation from the standard practice, is a dereliction of duty on part ofthe Examiner. Moreover, I observe that Shri Bala could not adduce any evidence insupport of any link downtime in EDI during the tenure from March 2Ol7 to June 2017.

58.6.9. I find that as per Shri Prananbananda Bala's voluntary submission dated13.06.2017 that he was privy to the selective examination instruction received byShri Navneet Kumar from Shri Nasiruddin vis-a-vis import consignments cleared byM/s. Sadguru Forwarders Pvt. Ltd.

58.6.10. I observe that as an examiner, Shri Pranabananda Bala did notdischarge his duties regarding the consignments handled by M/s. SadguruForwarders Pvt. Ltd and supervised by Shri Navneet Kumar. Even with respect to thecurrent case, I refer to the Panchanama proceedings dated 21.06.2077 regarding10070 examination of consignment imported under BoE No. 9948788 dated03.06.2017 and Import Documents obtained from the CHA and information retrievedfrom Customs EDI system, it was seen that the said BoE was found assessed,examined as per examination instruction to examine 5 o/o packages and givenooC by Customs on 05.06.2017 before intervention by DRI, KzU. During the100yo examination by DRI, KZU it was recorded in the Panchanama proceeding thatonly two packages out of 153 were found to have been opened earlier whichis lesser than the Group ordered 5%= B Examination order. Hence, I observe thatShri Bala for the instant Bill of Entry had lied when he had entered in EDI systemthat he had examined 8 packages.

58.6.12. Hence I conciude that Shri Pranabananda Bala cannot be givenprotection under section 155 of the Act, ibid as the findings suggest he has notdischarged his duty in a bona fide manner.

58.6.13. Based on the records available before me as discussed, I conclude thatShri Pranabananda Bala, being handpicked by Shri Navneet Kumar, DeputyCommissioner, was involved in almost all of the misdeclared consignmentsclearances of which were handled by M/s. Sadguru Forwarders. Shri Pranabananda

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58.6.11. I also observe that as per voluntary submissionof Shri Nasiruddin, ShriPranabananda Bala, along with Shri Navneet Kumar and Shri Vikki Kumar hadadvised him (Nasir) to avoid the DRI investigation effectively aiding and abetting aco-conspirator to escape j ustice.

F.No. 533 2312017 AD.IN (A&A)

Bala, further, in complete vio ation of the CBIC's Circular, had also been givenmanuai out of charge in many of such misdeclared consignments (BoE No. 99487BBdated 03.06.2017 of the instant case being one them) as ordered by Shri NavneetKumar, Deputy Commissioner. The officer had subverted the requirement of the EDIsystem by way of issuing such manual out of charge order. He used to enter the datalater in the system after the consignments were cleared from the Air Cargo complexleaving no scope for the detection of the misdeclared consignments by anypreventive agency.

58.6.14. it also appears that similar modus operandi would have been adoptedby them in respect of BoE No.9948804 dated 03.06.2017 and consignment under AirWay Bill No. 21715543404 dated 05.06.2017 also, had they been placed before himfor examination. However, for the intervention of DRi, the concerned arm of thesyndicate, represented by Nasir Uddin and Aloke Ghosh at ACC, Kolkata could nevermake arrangements for placing these consignments for examination.

58.6.15. Further even being Customs officers and having the onus to save thecountry's economic security, he acted in a reckless manner without caring for theguidelines and instructions of the CBIC and the Commissioner and actively aided andabated the dubious design of their Deputy Commissioner in perpetrating such a largescale smuggling of high value goods through Air Cargo complex, Kolkata. All this hasbeen done with an aim for personal gain at the expense of Govt. Exchequer. It wasvery well within his knowledge that the goods had already been cleared or beingattempted to be cleared (in the instant case) by them are smuggled into India andare liable to confiscation under the provisions of the Customs Act and his actsactually tantamount to be smuggling, yet, he subvefted the Customs machinery inorder to facilitate the clearance of such goods and therefore against unduegratification enabled unscrupulous persons like Nasiruddin and late Mayur Mehta tofile Bills of Entry Nos. 9948788 and 9948804 both dated 03.06.2017 in the name ofM/s. Sushil Kumar Singh for the impugned fraudulent lmports, as discussed above.Thus, by these acts of omission and commission as discussed above in abetting thescam of fraudulent import of (i) Mobile Phone Accessories, (ii) Branded Shoes, (iii).Wrist Watches of Different International Brand, (iv) Branded high-end mobile phones,motherboards / logic cards/ Accessories kit for branded television sets/ speakers, etc.by mls-declaring them as generic items with total mis-declared values to the tune ofRs. 9,75,73,L851- (Rupees Nine Crore Seventy Five Lakh Seventy Three ThousandOne Hundred and Eighty Five only), knowing about the illegal nature of the goodssought to be imported, Shri Vikki Kumar

a) has rendered the goods imported under BoE No. 9948788 dated 03.06.2017liable to confiscation under section 111(d), 111(f), 111(l), 111(l), 111(m) and119 of the Customs Act, 1962 read with Rule 6 of IPR Rules, 2OO7 for reasonsdiscussed supra;

b) has rendered the goods imported under BoE No. 9948804 dated 03.06.2017liable to conflscation under section 111(d), 111(f), 111(i) and 111(l) of theCustoms Act, 1962 read with Rule 6 of IPR Rules, 20O7 for reasons discussedsupra; and

c) has rendered the goods imported under AWB No.05.06.2017 Iiable to confiscation under section 111 (d),Customs Act, 1962 read with Rule 6 of IPR Rules, 2007,made himself liable for penalty under Section 112(a)(i)Held so.

27775543404 dated111 (f) and 119 ofconsequently

of Customs Acthav,l

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F.No. 533 23l2C17 AD]N (A&A)

58.6.16. Further, I observe tnat Shri Pranabananda Bala against unduegratification aliowed unscrupuloirs persons to machinate a scam of lmportingcontraband by way of filing Bi ls of Entry mis-deciaring the description and value ofthe imported goods therein, much in violation of Section 46 of Customs Act, 1962 asdiscussed above with a view to import counterfeit goods which are prohibited underIPR Rules, 2OO7 by concealment among generic import goods. Thus, by tacitapproval by choosing to enable people like Nasiruddin and late Mayur Mehta to lendIEC to unscrupulous persons including Shri Navneet Kumar for perpetrating the scamof fraudulent import of (i) Mobile Phone Accessories, (ii) Branded Shoes, (iii) WristWatches of Different International Brand, (iv) Branded high-end mobile phones,motherboards/ logic cards/ Accessories kit for branded television sets/ speakers, etc.by concealing them as generic items with total mis-declared values to the tune of Rs,9,75,73,L851- (Rupees Nine Crore Seventy Five Lakh Seventy Three Thousand OneHundred and Eighty Five only), has rendered the said imported goods liable toconfiscation under relevant provisions of Customs Act, 1962 as discussed above andconsequently made himself also liable for penalty under Section 112(b)(i) ofCustoms Act.1962. Held so.

58.6.17. Further, I observe that Shri Pranabananda Bala has against unduegratification, knowingly enabled the usage of false declaration u/s 46 of the Act, ibidin the transaction of import business by way of enabling unscrupulous persons to useIEC of Shri Sushil Kumar Singh by way of filing Bills of Entry, mis-declaring thedescription and value of the imported goods therein, much in violation of Section 46of Customs Act, 1962 as discussed above and has rendered the said imported goodsliable to confiscation under relevant provisions of Customs Act, 1962 as discussedabove and consequently made himself also liable for penalty under Section 114(AA)of Customs Act,1962. Hetd so.

58.7. Md. Nasiruddin (Noticee No. 7)

58.7.1. I find that Nasir Uddin, as has transpired from the investigation asdiscussed In the foregoing, was one of the key pawns in such large scale smugglingthroug h ACC, Kolkata.

5a.7.3, In this regard, I recall voluntary statement dated 19.07.2017 of ShriAloke Ghosh, G-Card Holder of M/s Sadguru Forwarders Pvt. Ltd. Wherein he statedinter alia that all related works right from assessment, noting, location, appraisementetc., were being done by Md. Nasir Uddin. He (Nasir Uddin) handed over the gatepass for completion of all formalities by Customs and he (Aloke Ghosh) cleared thegoods from Airport area only.

5A.7.4. He received the instructions to open and examine specific packagescontaining declared goods only in his e-mail account which was shared by NavneetKumar to late Mayur Mehta and was acting as a conduit for receiving and executingsuch directions

5A.7.4.L. The same fact is confirmed by going through the voluntary statedated 22.10.2017 of late Mayur Mehta, wherein he stated inter alia that itplanned that he would be sending the original packing lists and invoices to

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58.7.2, He executed the directions of Shri Navneet Kumar, the then DeputyCommissioner of Customs, ACC Kolkata in lieu of undue gratification and he himselfallowed to be used by DC Navneet Kumar for material gain. He had arranged for theCustoms Broker and acted as a representative of the Customs Broker without evenhaving a valld licence.

Page 120 of 145

F.No.533- 2312017 ADiN (A&A)

Uddin, indicating the packets which should be opened for examination, then NasirUddin would give it to the said Deputy Commissioner of Customs (Navneet Kumar)who would in turn instruct his subordinates to open those packets only duringexamination;

58.7,4.3. I find that on being confronted with the four pages print-outs marked as"Whish Sales 59 Ctn" and "Whish Sales 117 Ctn", in which package nos. withmark, items and weight were mentioned and against some packages "TO OPEN FORINNSPECTION" was mentioned, recovered from the house of Shri Navneet Kumarduring the search on 10.06.2017 and where Navneet Kumar put his dated signatureon 10.06.2017 and in respect of which Navneet Kumar commented that those wereprovided to him by an informer, Nasir Uddin stated that these were the copies ofdocuments received by him (Nasir) in his e-mail from Monika (e-mail ID beingma k.china@outlook.com ) on 27th fvlarch 2017. He had given printouts of thosesheets to Sri Navneet Kumar to instruct the Shed Officers accordingly. He hadalready submitted the printouts of the same documents from his mail account.

58.7.5. As per direction of his handlers i.e. Shri Navneet Kumar and lYiss SwatiVora he would present selected packages for examination before the officers so thatthe misdeclared items do not surface to evade suspicion of other CHAs, officers whowere not privy to the arrangement, and lastly he had arranged for quick clearance ofthe goods and for its delivery as per directions of his handlers with full and consciousknowledge that the goods being imported were all grossly misdeclared and some ofthe consignments contained contraband goods like cigarettes which are banned foruse in India as those do not bear the statutory warnings.

58.7.6. In the instant consignments under seizure he had also executed his jobsin similar manner by way of placing only those cartons for examination beforeCustoms for which he had received instruction. Had it not been timely intervened byDRI, he would have succeeded in clearing this mis-declared consignment also.

5a.7 .7. As regards to the submission(s) put forward by the Noticee throughwritten communication and PH, I will address them here.

5A.7,7.L. Shri Shovendu Banerjee, Advocate and authorised representative of Md.Nasir Uddin vide reply dated 31.01.2022 and common PH dated 31.01.2022 in thehad submitted, inter-alia, that:

a) his client had no "G" card as wrongfully alleged.

The submission is erroneous.

b) his client does not know any importer or exporter or any other personinvestigated by the DRI authorities as alleged in the show cause notice." 3

r-NT*fs

fa*v;i!:[.

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5A.7.4.2. In this regard I also find that DRI officials had recovered documents andsecret information (examination instruction sheets) related to the consignmentscleared in the past as well as some uncleared consignments which had beenimported in the name of Tapash Halder (consignment of 132 Packages), BiswasEnterprise (consignment of40 packages) Surya International (2 consignments of 200pkgs and 169 pkgs) and S. R. Solutions (consignment of 62 packages)from his emailaccount viz. nasir60036@g mail.com all of which have been seized by DRI afterdetection of smuggled goods in each of them and Show Cause Notices have beenissued to all the respective parties.

Observation: DRI, KZU has not alleged in the SCN that Shri Nasiruddin has "G" qard.

F.No. 533- 2312017 ADjN (A&A)

c) his client does not know any officer of customs yes my client is not a customsbroker.

Observation: From the call data records I observe that Shri Nasiruddin has been inconstant touch with the Customs Officers as well as Shri Mayur Mehta and Miss SwatiVora. This is corroborated by the fact that several out going calls have been foundfrom the mobile of Shri Nasiruddin to the mobiles numbers of Shri Navneet Kumar,Shri Vikki Kumar, Shri Pranabananda Bala, Shri Aloke Ghosh, Shri Sajal Das, LateMayur Mehta, Miss Swati Vora & Shri Santosh (all co-Noticees in the instant SCN)

d) his client was a labour & had no working knowledge of English.

Observation: The submission has no basis as I observe that Shri Nasiruddin hasrecorded his voluntary statements u/s 108 of the Customs Act,1962 in English in hisown handwriting as well as submitted letter(s) dated 05.01.2018 and 07.02.2018.That he being a labour having no connection to the instant case and the other 11

cases involving Mayur Mehta, has no basis as DRI officials had recovered documentsand secret information (examination instruction sheets) related to the consignmentscleared in the past as well as some uncleared consignments which had beenimported in the name of Tapash Halder (consignment of 132 Packages), BiswasEnterprise (consignment of 40 packages) Surya International (2 consignments of 200pkgs and 169 pkgs) and S. R. Solutions (consignment of 62 packages)from his emailaccount viz. nasir60036@gmail.com all of which have been seized by DRI afterdetection of smuggled goods in each of them and Show Cause Notices have beenissued to all the respective partles.

58,7.8. I also observe that the Noticee had not cooperated with theinvestigating authority by fleeing the examination area on 05.06.2017 on theinsistence of Shrl Navneet Kumar and had even asked Shri Aloke Ghosh to follow suit

5a.7.9. Vide voluntary statement dated 09.06.2017, Shri Nasiruddin hadconfessed to deletion of whatsapp texts between him and Navneet Kumar which isnothing but evidence tampering and is not an action of a person who has nothlng tohide from the investigating authorities and establishes the mens rea as well.

58,7.10. In nutshell, I find that Shri Nasir Uddin was knowingly involved inimport of such gross mis-declared consignments, and his activities actuallytantamount to smuggling knowing fully well that the goods were mis-declared andare liable for confiscation under the Customs Act, 1962. Md. Nasir Uddin knowinglyor intentionally made and used fake/forge import documents which do notcorrespond to the material lmported by M/s Sushil Kumar Singh. Therefore, itappears that said Shri Nasir Uddin had rendered himself liable for penal action underSection 112(a), Section 112(b) and Section 114AA of the Customs Act, 1962 for hisact of omission and commlssion.

5A.7.Lt. Based on the records available before me as discussed, I conclude thatShri Nasir Uddin had connived with unscrupulous person like Miss Swati Vora andlate Mayur Mehta with active support of Customs Officers Shri Navneet Kumar, ShriVikki Kumar and Shri Pranabananda Bala and others and abetted fraudulent importsin the IEC of M/s. Sushil Kumar Singh, by de facto filing of two Bills of Entry'Nos.9948788 and 9948804 both dated 03.06.2017 and with intention to file another B

corresponding to one Air Way Bill No. 27715543404 dated 05.06.2017 bydeclaring the description and value of the imported goods therein, much in violaof Section 46 of Customs Act, 1962.

n

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F.No. S33- 2312017 ADJN (A&A)

5A.7.12. In order to oo so, Shri Nasir Uddin against undue gratification allowedunscrupulous persons like lViss Swati Vora and late Mayur Mehta by the illegai use ofCHA role of M/s. Sadguru Forwarders Pvt Ltd. to file Bills of Entry Nos. 994B7BB and9948804 both dated 03.06.2077 in the name of lvl/s. Sushil Kumar Singh for purposeof clearance of the impugned fraudulent imports, as discussed above. Thus, by theseacts of omission and commission as discussed above in abetting the scam offraudulent import of (i) Mobile Phone Accessories, (ii) Branded Shoes, (iii) WristWatches of Different International Brand, (iv) Branded high-end mobile phones,motherboards/ logic cards/ Accessories kit for branded television sets/ speakers. etc.by mis-declaring them as generic items with total mis-declared values to the tune ofRs. 9,75,73,,.85/- (Rupees Nine Crore Seventy Five Lakh Seventy Three ThousandOne Hundred and Eighty Five only), knowing about the illegal nature of the goodssought to be imported

b) has rendered the goods imported under BoE No. 9948804 dated 03.06.2017liable to confiscation under section 111(d), 111(f), 111(i) and 111(l) of theCustoms Act, 1962 read with Rule 6 of IPR Rules, 2007 for reasons discussedsupra; and

c) has rendered the goods imported under AWB No. 21715543404 dated05.06.2017 liable to confiscation under section 111 (d), 111 (f) and 119 ofCustoms Act, 1962 read with Rule 6 of IPR Rules, 2007, consequently havingmade himself liable for penalty under Section 112(a)(i) of Customs Act,1962.Held so.

58.7.13. Further, I observe that Shri Nasir Uddin against undue gratificationenabled unscrupulous persons to machinate a scam of importing contraband by wayof filing Bills of Entry mis-declaring the description and value of the imported goodstherein, much in violation of Section 46 of Customs Act, 1962 as discussed abovewith a view to import counterFeit goods which are prohibited under IPR Rules, 2007by concealment among generic import goods. Thus, by tacit approval bychoosing to enable people like Sushil Kumar Singh to lend IEC to unscrupulouspersons including himself for perpetrating the scam of fraudulent import of (i) MobilePhone Accessories, (ii) Branded Shoes, (iii) Wrist Watches of Different InternationalBrand, (iv) Branded high-end mobile phones, motherboards/ logic cards/ Accessorieskit for branded television sets/ speakers, etc. by concealing them as generic itemswith total mis-declared values to the tune of Rs. 9,75,73,L851- (Rupees Nine CroreSeventy Five Lakh Seventy Three Thousand One Hundred and Eighty Five only), hasrendered the said imported goods liable to confiscation under relevant provisions ofCustoms Act, L962 as discussed above and consequently made themselves alsoliable for penalty under Section 112(b)(i) of Customs Act,1962. Held so.

5a,7,L4. Further, I observe that Shri Nasir Uddin has against unduegratlfication, knowingly caused to be used false declaration u/s 46 of the Act, ibid inthe transaction of import business by the illegal use of CHA role of M/s. SadguruForwarders Pvt Ltd. to file Bills of Entry Nos. 9948788 and 9948804 both dated03.06.2017, mis-declaring the description and value of the imported goods thereimuch in violation of Section 46 of Customs Act, 1962 as discussed above andrendered the said imported goods liable to confiscation under relevant provision

SCN: DRI/ KZU/CF/INT-75/Pt, Sri Ram/464O dtd 4.72.77 Page 123 of 14

a) has rendered the goods imported under BoE No. 9948788 dated 03.06.2017liable to confiscation under section 111(d), 111(f), 111(i), 111(l), 111(m) and119 of the Customs Act, 1962 read with Rule 6 of IPR Rules, 2007 for reasonsdiscussed supra;

F.No. S33' 2312017 ADIN (A&A)

Customs Acl, 1962 as discussed above and consequently made himself also liable forpenalty under Section 114(AA) of Customs Act,1962. Held so.

58.8. Miss Swati Vora alias Monica (Noticee No, 8)

5a.8.1. I find Ms. Monika Vora alias Swati Vora is an associate of late N4ayurMehta and is an Additional Director in the firms of Mayur Mehta, namely, M/s OmTrans Freight Cargo Private Limited, 1.4/s Menezes Clearing and forwarding PrivateLimited and Director, M/s Shreenathji Clearing & Forwarders Private Limited. Theseare the Customs Broker firms operating from Mumbai.

58,8,2. From the voluntary statement(s) of Shri Nasiruddin and late MayurMehta, it is gathered that lvls. Swati Vora alias Monika played pivotal role inperpetrating the large scale conspiracy in as much as she used to prepare themanipulated packing lists as per the actual content ascertained from the suppliersand send the e-mails containing the details of the packages, and also mentioningwhich packages are to be opened during investigation so that packages containingmisdeclared goods remain unnoticed and unexamined.

58,8.3. Late Shri Mayur Mehta, as investigations revealed was the master mindat the suppliers end, in as much as he arranged for the IECS of non-existent firms,contacted the suppliers to give the exact content of the packages and send themover through Ms Monika Vora to DC Navneet Kumar in a conduit e-mail of NasirUddin and then the DC used to take over the baton for safe clearance of thecontraband/ misdeclared goods. On behalf of the buyers in local grey market, he(Mayur Mehta) had imported such contraband goods but he did not identify thosebuyer for obvious reasons that they may remain untouched from the clutch ofinvestigation.

58,8.4. I also observe that Summons dated 25.07.2017 and 26.10.2017 underSection 108 of the Customs Act, 1962 were issued to Ms. Monika Vora @ Swati Voradirecting her to appear at the office of DRI, Kolkata on 03.08.2017 and 06.11.2017respectively.

58.8,5. Ms. Monika Vora, however, never attended DRI office in response to thesummons issued to her. In response to the summons dated 26.10.2017, Ms. Vora,vide her letter received on 07.11.2017, inter alia submitted that she used to send e-mail and whatsapp messages to Md. Nasir Uddin, regarding clearance of importconsignments, as per the instructions of Mayur Mehta. As it appeared that Ms. SwatiVora @ Monika was deliberately keeping herself away from the course ofinvestigation, complaint under Section 174 of the Indian Penal Code was lodgedagainst her in the jurisdictional Court for non-appearance against the Summonsissued under Section 108 of the Customs Act, 1962.

58.8,6. I also observe that no defence submission has been given by Miss Vorawith respect to the subject Show Cause Notice nor She or any authorisedrepresentatlve had appeared for personal hearing.

58.8.7. Based on the records available before me as discussed, I conclude thatShrl Nasir Uddin had connived with unscrupulous person like Miss Swati Vora andlate Mayur Mehta with active support of Customs Officers Shri Navneet Kumar,.ShriVikki Kumar and Shri Pranabananda Bala and others and abetted fraudulent import s

in the IEC of M/s. Sushil Kumar Singh, by de facto filing of two Bills of Entry N

9948788 and 9948804 both dated 03.06.20t7 and with intention to file anothercorresponding to one Air Way Bill No. 21715543404 dated 05.06.2017 by S-

rl

SCN: DRI/KzU/CF/INT-7s/Pt. Sri Ram/4640 dtd 4.72.77 Page L24 of '145

F.No.533- 2312017 ADJN {A&A)mported goods therein, much in violationdeciaring the description and value of the

of Sectron 46 of Customs Act, 1962.

58.8.8, In order to do so, Miss Swati Vora alias Monica under the patronageof late Mayur Mehta facilitated unscrupulous persons like Shri Shahansha Mallickalias Badshah, Shri Arnab Sinha and Shri Navneet Kumar by the illegal use of CHArole of M/s. Sadguru Forwarders Pvt Ltd. to file Bills of Entry Nos. 9948788 and9948804 both dated 03.06.2077 in the name of M/s. Sushil Kumar Singh for purposeof clearance of the impugned fraudulent imports, as discussed above. Thus, by theseacts of omission and commission as discussed above in abetting the scam offraudulent import of (i) Mobile Phone Accessories, (ii) Branded Shoes, (iii) WristWatches of Different International Brand, (iv) Branded high-end moblle phones,motherboards/ logic cards/ Accessories kit for branded television sets/ speakers, etc.by mis-declaring them as generic items with total mis-declared values to the tune ofRs. 9,75,73,1851- (Rupees Nine Crore Seventy Five Lakh Seventy Three ThousandOne Hundred and Eighty Five only), knowing about the illegal nature of the goodssought to be imported

b) has rendered the goods imported under BoE No. 9948804 dated 03.06.2017liable to confiscation under section 111(d), 111(f), 111(i) and 111(l) of theCustoms Act, 1962 read with Rule 6 of IPR Rules, 2O07 for reasons discussedsupra; and

c) has rendered the goods impoted under AWB No. 277L55434O4 daled05.06.2017 liable to confiscation under section 111 (d), 111 (f) and 119 ofCustoms Act, 1962 read with Rule 6 of IPR Rules, 2007, consequently havingmade herself liable for penalty under Section 112(a)(i) of Customs Act,1962.Held so.

58.8.9. Further, I observe that Miss Swati Vora alias Monica against unduegratification enabled unscrupulous persons to machinate a scam of importingcontraband by way of filing Bills of Entry mis-declaring the description and value ofthe imported goods therein, much in violation of Section 46 of Customs Act, 1962 asdiscussed above with a view to import counterfeit goods which are prohibited underIPR Rules, 20O7 by concealment among generic import goods. Thus, by tacitapproval by choosing to enable people like Sushil Kumar Singh to lend IEC tounscrupulous persons including himself for perpetrating the scam of fraudulentimport of (i) Mobile Phone Accessories, (ii) Branded Shoes, (iii) Wrist Watches ofDifferent International Brand, (iv) Branded high-end mobile phones, motherboards/logic cards/ Accessories kit for branded television sets/ speakers, etc. by concealingthem as generic items with total mis-declared values to the tune of Rs.9,75,73,L851- (Rupees Nine Crore Seventy Five Lakh Seventy Three Thousand OneHundred and Eighty Five only), has rendered the said imported goods liable toconfiscation under relevant provisions of Customs Act, 1962 as discussed above andconsequently made herself also liable for penalty under Section 112(b)(i) ofCustoms Act,1962. Held so.

58.8.10, Further, I observe that Mass Swati Vora alias Moundue gratification, knowingly caused to be used false declarationibid in the transaction of import business by the illegal use of

nica has agaiu/s 46 of the &,CHA role of M/s,

\

.A

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a) has rendered the goods imported under BoE No. 994B7BB dated 03.06.2017liable to confiscation under section 111(d), 111(f), 111(i), 111(l), 111(m) and119 of the Customs Act, 1962 read with Rule 6 of IPR Rules, 2OO7 for reasonsdiscussed su pra;

F.No. S33- 2312017 ADIN {A&A)Sadguru Forwarders Pvt Ltd. to clear contraband items by fi ing Bills of Entry Nos.9948788 and 9948804 both dated 03.06.2077, mis-declaring the description andvalue of the imported goods therein, much in violation of Section 46 of Customs Act,1962 as discussed above and has rendered the said imported goods liable toconfiscation under relevant provisions of Customs Act, 1962 as discussed above andconsequently made herself also liable for penalty under Section 114(AA) of CustomsAct,1962. Held so.

58.9. Shri Arnab Sinha (Noticee No. 9)

58.9.1. From thei. Air Way Bill No. 16083695684 dated 03.06.2017 and Invoice No. ZFT-995/17-18

dated 01.06.2017 related to.BoE No. 994B7aB dated 03.06.2017;ii. Air Way Bill No. 17654035881 dated 03.06.2017 and Invoice No. ZFT-998I17-18

dated 30.05.2017 related to BoE No.9948804 dated 03.06.2017;iii. Air Way Bill No. 2L715543404 dated 05.06.2017; it has been observed that the

Shipper's name as well as Consignor's name in all the three conslgnments is M/s.Zhenda Foreign Trade HK Ltd and the concerned freight forwarder connected withall the three consignments is M/s. NAF Logistics Private Ltd.

58.9.2. Shri Arnab Sinha is one of the registered directors of both M/s ZhendaForeign Trade HK Limited and M/s NAF Logistics Private Limited. The other Directorbeing his mother Smt. Mohua Sinha.

58.9.3, As per declaration u/s 46 of the Customs Act, 1962, M/s. Sushil KumarSingh has declared the supplier/ seller of the goods to be M/s. Zhenda Foreign TradeHK Ltd.

58.9.4. Vide discussion at Para 52 supra, I have already rejected the declareddescription(s) for the consignments under BoE Nos. 9948788 and 9948804 bothdated 03.06.2017 and AWB No. 21715543404 dated 05.06.2017.

58.9.5. Vide discussion at Para 53 supra, I have already rejected the declaredtransaction value(s) for the consignments under BoE Nos. 9948788 and 9948804both dated 03.06.2017 and have redetermined the same under the provisions ofCustoms Valuation (Determination of Value of Imported Goods) Rules, 2007 videdlscussion at Para. 54 supra.

58.9.6. Vide voluntary statement of Shri Arnab Sinha, it is learnt that even thethe signature oF Hertman Wong signing as authorized signatory of M/s. ZhendaForeign Trade HK Limited on the invoices and packing list for the subjectconsignments is false. The actual name is Hertman Kong. This person was known tohlm as working in M/s TH Mason Logistics in Hong Kong whose owner Mr. Joseph Leewas the erstwhile proprietor of M/s.Zhenda Foreign Trade HK Ltd. The ownership ofM/s.Zhenda Foreign Trade HK Ltd. Was transferred from Mr. Joseph Lee to him andhis mother on payment of HKD 8000. Neither he nor his mother as Co-Directors ofZhenda Foreign Trade HK Limited authorised Hertman Kong for signing the invoiceand Packing Lists.

and packing list also did not reflect the true nature of the shipped goods.

54.9,8, From the voluntary statement of Shri Sushil Kumar Singh it has b

learnt that Shri Arnab Sinha had used his (Sushil) IEC to import electronic goods I

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5A,9.7, Hence, from the discussion supra it is evident that Shri Arnab Sinha wasinstrumental in fabrication of invoice and packing list and the contents of the invoice

F.No.533' 2 3/2017 AD]N {A&A)motherboard, TV, LED panels earlier. 1n this regard, I also observe that similar itemshave been found to be inside the 9 packages vis-a-vis Air Way Bill No. 21715543404dated 05.06.2017 indicating that the beneficial owner of this consignment wasactually Shri Arna b Sinha.

58,9,9. From the voluntary statement of Shrl Shahansha Mallick, it is learnt thatShri Arnab Sinha came in contact with him when he acted in capacity of freightforwarder through his directorship firm M/s. NAF logistics which was used by ShriBadshah to import two consignments in May, 2017.

58.9,1O. Shri Badshah had used the godown of NAF logistics as per lnformationsupplied by Arnab Sinha to package the contraband goods for import into India.

58.9,11. In this regard, I have also observed that although M/s Zhenda ForeignTrade HK Limited is actually the supplier of the 47 consignments imported throughKolkata Airport during the period 2015-2077, the transaction amount for eachconsignment could not be remitted in the account of M/s Zhenda Foreign Trade HKLimited as it did not have any bank account.

58.9.12. In this regard, I also observe that Shri Sushil Kumar Singh hadvoluntarily stated that Sri Ram Traders had only one bank account at Tamil NadMercantile Bank Limited, Kolkata which had been closed in January/ February 2017.

58.9.13. I observe that as the invoices with respect to the subject consignmentshad been raised in the month of May and June of 2017, considering the fact thatneither of the consignor or consignee had operative FOREX bank accounts, the entireinvoice is bogus.

58.9.14, I conclude that M/s Zhenda Foreign Trade HK Limited is basically aname lending firm. The purchasers purchased the goods and dispatched the same tothe storage godown of M/s Zhenda Foreign Trade HK Limited in packed condition.Zhenda issued the invoices and the packing lists etc. without knowing about thegoods based on the dictated description of the goods and value by the actualimporters.

58.9.15. I observe that Shri Arnab Sinha voluntarily confessed to have knowinglyabetted the misdeclaration and undervaluation of the imports handled by ZhendaForeign Trade HK Limlted and M/s NAF Logistlcs.

58.9.16. As regards to the submission(s) put forward by the Noticee throughwrltten communication and PH, I will address them here.

A. I had stated in my stcttement that Shri Sushil Kuntqr Singh (Proprietor of Ll/s Sri Ram Traders) v,asknown to me. When he approached me (luile a long tinte bock lhal he has an I EC and thus v,anted toimport, I gove hint the nctnrc of ALts Zhenda Foreign Trode HK Limited as supplier ond the name of ll4/sShipair Express(HK) Ltd as carrier u'ith d vieu' lo ensure lhe business inlerest of nty freight fot'wardingcontpany A4/s NAF Logistics. l4/s Shipair Erpress(HK) Ltd is my cotmter po in Hong Kong in lhe business

of freighr forwarding. Since the goods supplied by M/s Zhenda Foreign Trade HK Linited are usuallycarried by ltI/s Shipair Express (HK) Ltd, I am supposed to get the freight fitrwarding commission for everysuch consignntenl. Thot is my business interest ond you musl appreciale lhol lhere is nothing s,rong in iThe inNesligatiott misinlerpreted my statenrcnt and distorted lhe facl. It is lrue thot I and my motheracquired 50 shares each of M/s Zhenda Foreign Trade HK Limited earlier as one of the Directors an *

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The submissions put forward by Shri Arnab Sinha vide letter dated 19.02.2018 are asu nder:

F. No. S33- 2312017 ADJN (A&A)

Form dutcd 12.9.2011 is utnc.\ul.l

Observation: I observe that a statement under section 108 of the Customs Act,1962 is voluntary. Shri Arnab Sinha had voluntarily declared that he is one ofthe Co-directors of M/s Zhenda Foreign Trade HK Limited when and had appended hissignature on the statement after reading and agreeing with its contents. I observethat as the statement was taken on 23.1O.2017 whereas as per submission of theNoticee, their relationship with M/s Zhenda Foreign Trade HK Limited was terminatedwith eFfect from 01.03.2017 since they had transferred their entire shares on01.03.2017 to Mr. TSO Siu Ho which he failed to mention in his voluntary statement.I also observe from records that no copy of NAR1 Form dated 12.9.2017 has beenannexed with the submission. I further observe that in response to opportunity forPersonal hearing granted to the Noticee on 25.02.2022, the Noticee emailed a letterdated 22.02.2022, enclosing his past correspondence with the Department regardinghis request for cross examination along with scanned copy of his letter dated13.02.2018, wherein also the copy of NAR1 form was not enclosed. Moreover, onvisiting the website of 6co.com com an 166 under theheading "Company Changes" it was seen that as per record only 3 events are onrecord for the company in 2Ol7 which are reproduced as under:

Mon, 23-Oct-2017 Resignation ofCompany Secretary and DireclorMon, 23-Oct-2017 Resignation ofCompeny Secretary and DirectorMon,23-Oct-2017 Change ofConpany Secrelury ond Director (Appointmenl/ Cessation)

Accordingly, based on available data on record, the change in directorship before30.05.2017 i.e. date of generation of Involce No. ZFT-998I17-18 dated 30.05.2017related to BoE No. 9948804 dated 03.06.2017, as submitted by the Notlcee has nobasis. Moreover, I observe that even if directorship of the firm was changed in March,2017 as stated, Shri Badshah through the usage of IEC of Shri Sushil Kumar Singhdid not change the supplier/ consignor indicating the scam of delivering the goods toIndia by a freight aggregator posing as a seller without having an operative bankaccount for receiving FOREX remittance from India, a trend originally started wayback in 2015 when Shri Arnab Sinha was still in charge of the company was still inmotion. I observe that Shri Arnab Slnha, being a resident Indian had routinelyviolated Foreign Trade (Development & Regulation) Act, 1992 by posing a seller in196 import conslgnments without receiving the remittance through offlcial channel.Hence Shrl Arnab Sinha is still liable for any fraud committed by usage of IEC of ShriSushil Kumar Singh as his mala fide nature has been established.

B. Being afreight fory,arder, we have no scope lo see/exontine the goods of any consignmenl booked

by us. It is unitersalb, accepted practice lhql the freight forv'arders/ Shipping componies uccept the

description of the goods as declored by the shippers and accordingly issue the Bill of Lading/House AirwayBills. Therefore, the .freight .forwarders/carriers can not be held responsible for any ntisdeclaralion of the

shipper.

Observation: As per section 46 of the Customs Act, 1962 the IEC holder M/s. SushllKumar Singh has declared the shipper to be M/s. Zhenda Foreign Trade HK Limitedhaving no bank account as per statement of shri Arnab Sinha. Although shri Sinhamay not be related to the company on paper, the modus operandi was still activefrom the time he was a registered director in the said firm, indicating that contro lothe firm regarding its business in India was effectively in his hands. Also as S

Sinha officially was in charge of the freight forwarding of the consignments wh

h

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F.No. 533 2312017 ADIN (A&A)

stakeholders were simiiar to those in the past, his involvement with the perpetratorsof the fraud is evident. Shri Arnab Sinha is also linked to one of the consignmentshaving Air Way Bill No. 21715543404 dated 05.06.2017 which contained brandedelectronic components for TV, speaker, etc. Making him the beneficial owner (withinthe meaning of sectlon 2 (34) of the Customs Act, 1962) for the said consignmentand hence cannot escape liability under Customs Act, 1962.

C. L hc Shov ( uttsc .\'olice ulxt prttltoscs lrcnull.t trnlcr scctirttt l l 2(hl. litu nrut ulrytrac itrtc tltut I

goo<ls. It is qtpu'ant ./funt the languuge o/ scction I 12(h) thut .scttiott I I2(h) ntusr .fillill txrt cssantiulo'ilcriu i.c. (l ) lhc pson musl htn:c ucquiretl posscssiott o/ ot' is in afit ttc4' concernetl in crrrr.t'ing.renul'ing. depositing. hurbouring, keeping, conc'culing. selling or purchusirtg or deuling in un.t, olhartnttnner und (21 he knovs or has reason to believe lhut the goods urc liuhle to confscotion untlcr section

1ll. Both lhe crilcriu are absent in the Shov'('uusc Nolic'e in intpliruting nte. Therefore, penultv urulersection ll2( cnmol be intposed on me. I u,ould like to rely qton the.fitllou'ing case lov,s in this regurd.u. Anikendu L'houdhury.---- 2005(182) ELT 206(Tri.)b. Gopul K Sapru ---- 2007(2 13) ELT 689(Tri.1t. Sandecp Sltuh --** 2007(2 131 ELT 269(Tri.1d. Gokul Terriles -------2007(218) ELT 299(Tri.)

D. The Show Cause Notice also proposes penally tmder seclion I l4AA. The investigation ntuy not beawore about the correct applicabilily of this provision. This section is applicable only in the coses of exporlwhen there is no exislence of goods bul the documents are filed fraudulenlly to enjoy some benefil, sinceother provisions for imposing penalty can not be invoked in such case. You may be sware that seclionI l4AA was inserted in the Customs Act, 1962 v'ith effect from 13.07.2006 after enactment of the FinanceBill, 2006. In this context, we like to rely upon the approral dated l2 December, 2005 of the proposedFinance Bill, 2006 accorded by the Choirman of the Slanding Committee on Finsnce. Para 63 of the saidapproval clearly expresses thal the new section I llAA utas proposed to provide penalty in lhe cases whereexport was on pqper only and no goods had ever crossed the border. This conclusively indicales lhotSection I l4AA of the Customs Act, 1962 can not be invoked in the instant case ond consequently no penaltycan be imposed on me tmder this section.

Observation: Section 114AA of Customs Act, 1962, categorically provides forpenalty upon a person who knowingly or intentionally makes, signs or uses, orcauses to be made, signed or used any declaration, statement or document which isfalse or incorrect in any material particular, in the transaction of any business for thepurpose of the Act. Nowhere does it mention that it should apply export frauds only.Hence the submission does not hold water.

5a,9.17, Based on the plethora of evidence and voluntary statements availablebefore me read with supplied RUDs, I conclude that Shri Arnab Sinha is a habitualoffender. He had connived with unscrupulous person like Shri Shahansha Mallikalias Badshah (Noticee No.2), Shri Sushil Kumar Singh (Noticee No.o1), Shri NavneetKumar (Noticee No.4) with active support of Customs Officers Shri Vikki Kumar(Noticee No. 5) and Shri Pranabananda Bala (Noticee No. 6) and CHA M/s. SadguruForwarders Pvt. Ltd. (Noticee No.3) through their G-Card employee Shri AlokeGhosh (Noticee No. 10) and others and abetted fraudulent imports in the IEC ofaforesaid company, by way of supplying forged import documents for filing two B

of Entry Nos. 9948788 and 9948804 both dated 03.06.2017 and with intention to

-ri5(SCN: DRI/ KZU /CF/ INT- 75/ Pt. sri Ram/464O dtd 4,72.77

+

Observation: I have examined the judgments cited by the Noticee in his favour. Itneeds to be appreciated that each case is based on its own facts and circumstancesand my findings as above are based on the nature of offence committed by theNoticee and therefore, unless the facts of the relied upon case are shown to be thesame as in this case, any reliance on the same would not be in true spirit of judicialdiscipline.

Page 129 of

F.No. 533 2312017 ADiN (A&A)

another BoE corresponding to one Air Way Bill No. 21715543404 dated 05.06.2017by mis-declaring the description and value of the imported goods therein, much inviolation of Section 46 of Customs Act, 1962.

58.9.18. In order to do so, Shri Arnab Sinha, for monetary gains, allowedunscrupulous persons like Shri Shahansha Mallik alias Badshah and Shri SushilKumar Singh to use his godown in Shanghai to store the impugned goods for thepurpose of being shipped to India under fake/ forged import documents, as discussedabove. Thus, by these acts of commission in abetting the scam of fraudulent importof (i) Mobile Phone Accessories, (ii) Branded Shoes, (iii) Wrist Watches of DifferentInternational Brand, (iv) Branded high-end mobile phones, motherboards/ logiccards/ Accessories kit for branded television sets/ speakers, etc. by mis-declaringthem as generic items under fake/ forged invoices and packing lists with total mis-declared values to the tune of Rs.9,75,73,L851- (Rupees Nine Crore Seventy FiveLakh Seventy Three Thousand One Hundred and Eighty Five only),

a) he has rendered the goods imported under BoE No. 9948788 dated 03.06.2017liable to confiscation under section 111(d), 111(f), 111(i), 111(l), 111(m) and119 of the Customs Act, 7962 read with Rule 6 of IPR Rules, 2007 for reasonsdiscussed supra;

b) he has rendered the goods imported under BoE No. 9948804 dated 03.06.2017liable to confiscation under section 111(d), 111(f), 111(i) and 111(l) of theCustoms Act, 1962 read with Rule 6 of IPR Rules, 2OO7 for reasons discussedsupra; and

c) he has rendered the goods imported under AWB No. 21715543404 dated05.06.2017 liable to conflscation under section 111 (d), 111 (f) and 119 ofCustoms Act, 1962 read with Rule 6 of IPR Rules, 2007, consequently havingmade himself liable for penalty under Section 112(a)(i) of Customs Act,l962.Held so.

58.9.19. Further, I observe that Shri Arnab Sinha has, for monetary gains,knowingly caused to be used false declaration u/s 46 of the Act, ibid in thetransaction of import business by way of allowing unscrupulous persons like ShriShahansha Mallik alias Badshah and Shri Sushil Kumar Singh to use his firm M/s.Zhenda Foreign Trade HK Limlted as a conduit to smuggle contraband goods intoIndia by way of filing Bills of Entry mis-declaring the descriptlon and value of theimported goods therein, much in vlolation of Section 46 of Customs Act, 1962 asdiscussed above with a view to import counterfeit goods which are prohibited underIPR Rules, 2O07 by concealment among generic import goods. Thus, by hisdealing with the goods imported under instant three consignments throughlending his firm M/s. Zhenda Foreign Trade HK Limited to unscrupulous persons inthe scam of fraudulent import of (i) Mobile Phone Accessories, (ii) Branded Shoes, (iii)Wrist Watches of Different International Brand. (iv) Branded high-end mobile phones,motherboards/ logic cards/ Accessories kit for branded television sets/ speakers, etc.by concealing them as generic items with total mis-declared values to the tune of Rs.9,75,73,185 /- (Rupees Nine Crore Seventy Five Lakh Seventy Three Thousand OneHundred and Eighty Five only), Shri Arnab Sinha has rendered the said importedgoods liable to confiscation under relevant provisions of Customs Act, 1962 asdiscussed above and consequently made himself also liable for penalty under Section112(b)(i) of Customs Act,1962. Held so.

58.9.20. Further, I observe that Shri Arnab Sinha has, for monetary g

knowingly caused to be used false declaration u/s 46 of the Act, ibid i p'

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I

r" oic

[.No. 533- 231211i7 AD.]\ (A&A)

transactlon of ln port bus ness Dy way of alowlng ursc:ip! ous persons ke ShriShahansha Mallik alias Bacshah and Shri Sushl Kura: S nEh to use his frrm N4/s.

Zhenda Foreign Trade HK Limited as a conduit to smuggle contraband goods intoIndia by way of filing Bills of Entry mis-declaring the description and value of theimported goods therein, much in violation of Section 46 of Customs Act, 1962 asdiscussed above. Thus, by his tacit approval by lending his IEC to unscrupulouspersons in the scam of fraudulent import of (i) Mobile Phone Accessories, (ii)Branded Shoes, (iii) Wrist Watches of Different International Brand, (iv) Brandedhigh-end mobile phones, motherboards/ logic cards/ Accessories kit for brandedtelevision sets/ speakers, etc. by mis-declaring them as generic items with total mis-declared values to the tune of Rs, 9,75,73,L851- (Rupees Nine Crore Seventy FiveLakh Seventy Three Thousand One Hundred and Eighty Five only), Shri ArnabSinha has rendered the said imported goods liable to confiscation under relevantprovisfons of Customs Act, 1962 as discussed above and consequently made himselfalso liable for penalty under Section 114(AA) of Customs Act,1962. Held so.

sa.r0. Shri Aloke Ghosh (Noticee No. 10)

58.10.1. I find that Shri Aloke Ghosh has functioned as one of key elements inthe scam perpetrated through Kolkata Air Cargo Complex under the supervision ofShri Navneet Kumar, Deputy Commissioner.

5a,1O.2. From the voluntary statements of Shri Aloke Ghosh and Shri Nasiruddin,I observe that:

58.1O.2.1. He was recruited by Shri Nasiruddin to let him (Nasir) use the CHA roleof M/s. Sadguru Forwarders Pvt. Ltd for clearance of consignments some select IECholders in lieu of monetary consideration of Rs. 1500/- to Rs. 2000/- perconsignment, totally amounting to Rs. 2,OO,OOO/- in a span of three months.

58.10.2.2. He was not asked to beconsignments overseen by Shri Nasir.

present during the examination of the

58.10.2.3. He let Nasiruddin file Bills of Entry illegally by loaning him the CHA roleof M/s Sadguru Forwarder Pvt. Ltd. The stamp of M/s Sadguru Forwarder Pvt. Ltd.Was also loaned illegally to Shri Nasiruddin whcih he(aloke) and late Sukhendu Maity(authorised representative of M/s Sadguru Forwarder Pvt. Ltd.) knew.

58.1O.3, From the conjoint reading of voluntary statements of late SukhenduMaity, Shri Aloke Ghosh and Shri Nasiruddin, I observe that the business of clearanceof contraband goods masterminded by Mumbai based late Mayur Mehta under activeconnivance with Shri Navneet Kumar was brought to M/s. Sadguru Forwarders Pvt.Ltd. by their G-Card employee Shri Aloke Ghosh in lieu of personal gratificationunder suggestion of Shri Nasiruddin, the antecedents, identity of the IECs on whosebehalf, the clearance job was undertaken (in the instant case being M/s. SushilKumar Singh) and functioning of their clients at their declared address by usingauthentic sources in terms of Regulation 11(n) of Customs Brokers LicensingRegulation 2013 was never independently verified by neither Sukhendu Maity norShri Ghosh.

58.10.4. I observe that the IEC holder has voluntarily stated u/s 108 of theCustoms Act, 1962 that although M/s Sushil Kumar Singh having IEC no.0206016477 had declared main office address at 28, lhill Road, Cossipur, Kolka7oooo2, and branch office(s) at Makan No. D 498, Gali No.4, Rajeev ColonyKundali, Delhi 11OO98; 9,Old China Bazar Street, 3rd Floor, Room N *

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F.No. S33 2312017 ADJN (A&A)- Kolkata, W.B.7OOOO1; & L/26, Ghosh Bagan Lane, Kolkata,W. B.7OOOO2, the

branch offices of the IEC does not exist. When the officers of DRI visited theregistered main address of aforementioned company, no such company(s) was foundto be existing at the premises. On the contrary, it was observed that the premiseswas actually an address of a single room apartment in a dilapidated condition.

5a,1O,5. The Regulation 11(n) makes it mandatory that the CHA has to verifyantecedents, iEC Code, identity of the client, which are obviously the documentaryverifications. However, the Regulatlon 11(n) does not stop here but adds'.... andfunctioning of his client at the declared address.....'. It is thus clear in unambiguousterms that the CHA's obligations do not stop merely after verifying genuineness ofKYC documents submitted by the client but the CHA has to ensure that the said clientis actually functioning from the declared address. I find that in the instant case ShriAloke Ghosh, by his own admission, had not verified the credentials of M/s SushilKumar Singh physically. Instead he had relied on credibility of unauthorised personlike Nasiruddin who brought the business of the IEC holder to their firm. For allintents and purposes, it appears that Shri Aloke Ghosh had reposed faith on anunauthorised person like Nasiruddin to conduct business on their behalf by acquiringclients and clearing goods in their name. That in the present case, the IEC holderturning out to be not the actual importer vitiates the CHA'S claim of innocence.

58.10.6. I rely on the judgement in the matter Nazir Ahmed Vs. Emperor on 16thJune 1936. The said decision enunciates the principle that 'if a particular thing isrequired to be done in a particular manner. Then that thing must be done inthat manner only or not at all.'When the Regulation 11 (n) made it obligatory onpart of CHA to ensure functioning of the client from the declared address there ls noreason why should not have been done it not done, the CHA had no propriety topresent the documents before the Customs authorities. I am, therefore, inclined andeven constrained to hold that the CHA has utterly failed in fulfilling the obligationcast upon him and the haste and lackadaisical manner displayed by the CHA inprocessing and presenting the export documents in the instant case, cast his roleunder serious suspicion.

5a.10.7. Shri Aloke Ghosh has acted in a most casual and lackadaisical mannerand presented the goods for import before the customs officers on behalf of an IEClender who had no ldea about the contents of the consignments under BoE Nos.9948788 and 9948804 both dated 03.06.2017 and AWB No.21715543404 dated05.06.2017, thus violating the obligations placed upon the CHA in terms ofRegulation 11(n) of the CBLR 2013. I, therefore, do not find any reason to show anyleniency towards Shri Aloke Ghosh, as far as the facts and circumstances of the caseare concerned.

58.10.8. I also observe from the voluntary submission of Shri Aloke Ghosh dated08.06.2017 that on 05.06.2017, when DRI offlcers wanted to examine consignmentshandled by M/s. Sadguru Forwarders Pvt. Ltd., he had escaped on instruction of ShriNasiruddin which clearly shows that Shri Aloke Ghosh knew about the illegal natureof the cargo he (Nasir) dealt with.

58.10,9. As regards to the submission(s) put forward by the Noticee throughwritten communication and PH, I will address them here.

58.1O,9.1. Shri Shovendu Banerjee, Advocate and authorised representatiyeShri Aloke Ghosh vide reply dated 3t.O1.2022 had submitted, inter-alia, that:

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of

h. hi.s tlient $u.\ ttol d Lttslotlt.\ brokct

Observation: In this regard, I flnd that late Sukhendu N4aity , authorised person ofM/s Sadguru Forwarders Pvt. Ltd. had himself stated, inter-alta, that Shri AlokeGhosh is the G-card holder of the firm. In this regard, I have also observed that asper official records available with the Department, Shri Aloke Ghosh had been issuedCustoms Pass No: S-116/11 (G) for the CHA M/s. Sadguru Forwarders Pvt. Ltd on24.O5.20t7.

Observation: In this regard, I find that late Sukhendu lt4aity, authorised person ofM/s Sadguru Forwarders Pvt. Ltd. Had himself stated, inter-alia, that Shri AlokeGhosh is the G-card holder of the firm. In this regard, I have also observed that asper official records available with the Department, Shri Aloke Ghosh had been issuedCustoms Pass No: S-116/11 (G) for the CHA M/s. Sadguru Forwarders Pvt. Ltd on24.O5.2017. It is also in departmental record that SHri Aloke Ghosh had been issuedcustoms pass for the 1't time way back in 29.O5.2OO2.

c. His client did not know ony imporler or exporter or any olher person call invesligated by the Dklauthorities as alleged in the Shou, Cause Notice.

d. His client did not know any fficer of customs. yes my client is tlot o cusloms broker-

Observation: As per Call Data Records, it is seen that Shri Aloke Ghosh had placedcalls to Shri Nasiruddin more than 300 times in the period from January 2017 to Jun,2Ol7 as well as to Shrl Pranabananda Bala (Examiner). If he was in reality a labouras stated, he had no business with a customs officer. Also the very fact that he hadfled after DRI's Intervention shows his deep involvement in the matter.

58.10.1O. Based on the records available before me as discussed, I conclude thatShri Aloke Ghosh had connived with unscrupulous person like Nasiruddin and lateMayur Mehta with active support of Customs Officers Navneet Kumar (Noticee No. 4),Shri Vikki Kumar (Noticee No. 5) and Shri Pranabananda Bala (Noticee No. 6) andothers and abetted fraudulent imports in the IEC of M/s. Sushil Kumar Singh, by wayof filing two Bills of Entry Nos. 9948788 and 9948804 both dated 03.06.2017 andwith intention to file another BoE corresponding to one Air Way Bill No. 21715543404dated 05.06.2O77 by mis-declaring the description and value of the imported goodstherein, much in violation of Section 46 of Customs Act, t962.

58.10,11. In order to do so, Shri Aloke Ghosh against undue gratificationallowed unscrupulous persons like Nasiruddin and late Mayur Mehta to file Bills ofEntry Nos. 9948788 and 9948804 both dated 03.06.2017 in the name of M/s. SushilKumar Singh for the impugned fraudulent imports, as discussed above. Thus, bythese acts of omission of verifying the antecedents of lmporter and commission inabetting the scam of fraudulent import of (l) Mobile Phone Accessories, (ii) BrandedShoes, (iii) Wrist Watches of Different International Brand, (iv) Branded high-endmobile phones, motherboards/ logic cards/ Accessories kit for branded televisionsets/ speakers. etc. by mis-declaring them as generic items with total mis-declaredvalues to the tune of Rs. 9,75,73,L851- (Rupees Nine Crore Seventy Five LakhSeventy Three Thousand One Hundred and Eighty Five only), knowing about thelllegal nature of the goods sought to be imported

a) has rendered the goods imported under BoE No. 9948788 dated 03.06.2liable to confiscation under section 111(d), 111(f), 111(i), 111(l), 111(m)

ISCN: DRI/ KZU /CF/INT-7,/ Pt. Sri Ram/4640 dtd 4.72.77 Page 133

F.No.533-23/2c17 AD.I N {A&A)llit clitrrt hul rt .'(i urd of ( u.\lt)lt\ 811)k?r. .ll.t ,\ul,lrtt.tt l'()rr(trLl(,r.\ l'rt l.ti. trt \l.t,n:<lj l.r'

F.No. 533' 2312017 AD.IN (A&A)1962 read with Rule 6 of IPR Rules, 2007 for reasons119 of the Customs Act,

discussed supra;

b) has rendered the goods imported under BoE No. 9948804 dated 03.06.2017liable to confiscation under section 111(d), 111(f), 111(i) and 111(l) of theCustoms Act, 1962 read with Rule 6 of IPR Rules, 2OO7 for reasons discussedsupra; and

c) has rendered the goods imported under AWB No. 21775543404 dated05.06.2011 liable to confiscation under section 111 (d), 111 (f) and 119 ofCustoms Act, 1962 read with Rule 6 of IPR Rules, 2007, consequently havingmade himself liable for penalty under Section 112(a)(i) of Customs Act,1962.Held so.

58,10.12. Further, I observe that Shri Aloke Ghosh against undue gratificationallowed unscrupulous persons to machinate a scam of importing contraband by wayof filing Bills of Entry mis-declaring the description and value of the imported goodstherein, much in violation of Section 46 of Customs Act, 1962 as discussed abovewith a view to import counterfeit goods which are prohibited under IPR Ruies, 2007by concealment among generic import goods. Thus, by tacit approval bychoosing to overlook the errant action Shri Nasiruddin, enabling people like SushilKumar Singh to lend IEC to unscrupulous persons for perpetrating the scam offraudulent import of (i) Mobile Phone Accessories, (ii) Branded Shoes, (iii) WristWatches of Different International Brand, (iv) Branded high-end mobile phones,motherboards/ logic cards/ Accessories kit for branded television sets/ speakers, etc.by concealing them as generic items with total mis-declared values to the tune of Rs.9,75,73,L851- (Rupees Nine Crore Seventy Five Lakh Seventy Three Thousand OneHundred and Eighty Five only), has rendered the said imported goods liable toconfiscation under relevant provisions of Customs Act, 1962 as discussed above andconsequently made himself also liable for penalty under Section 112(b)(i) ofCustoms Act,1962. Held so.

58.10.13. Fufther, I observe that Shri Aloke Ghosh has against unduegratification, knowingly caused to be used false declaration u/s 46 of the Act, ibid inthe transaction of import business by way of allowing unscrupulous persons like ShriShahansha Mallik alias Badshah, Shri Navneet Kumar and Shri Arnab Sinha to useIEC of Shri Sushil Kumar Singh by way of filing Bills of Entry, mis-declaring thedescription and value of the imported goods therein, much in violation of Section 46of Customs Act, 1962 as discussed above. Thus, by tacit approval by choosing tooverlook the errant action of Shri Nasiruddin in the scam of fraudulent import of (i)Mobile Phone Accessories, (ii) Branded Shoes, (iii) Wrist Watches of DlfferentInternational Brand, (iv) Branded high-end mobile phones, motherboards/ Iogiccards/ Accessories kit for branded television sets/ speakers, etc. by mis-declaringthem as generic items with total mis-declared values to the tune of Rs.9,75,73,L851- (Rupees Nine Crore Seventy Five Lakh Seventy Three Thousand OneHundred and Eighty Five only), Shri Aloke Ghosh has rendered the said importedgoods liable to confiscation under relevant provisions of Customs Act, 1962 asdiscussed above and consequently made himself also liable for penalty under Section114(AA) of Customs Act,1962. Held so.

58.11. Shri Sajal Das (Noticee No. 11)

58.11.1. I find that Shri Sajal Das had been one of the key enablers in the aforementioned scam. He had given the contact of Shri Nasiruddin to Sh ri Sha ha nsMallick alias Badshah to pursue the scam of importing high value branded goods

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v declaring the same usingCustoms Officers.

F.No. S33- 2312017 ADIN (A&A)

IEC lenders with active patronage from unscrupulous

58.11.2. Late Sukhendu Maity vide voluntary statement dated 27.06.2017 hadstated, inter alia, that he had heard from Shri Aloke Ghosh that Sajal was one of thetrusted men of Shri Navneet Kumar.

58.11.4, From the voluntary statement of Shri Pranabanand Bala dated29.06.2017 and 13.07.2017, it was stated inter alia that after joining as examiner inACC Kolkata in the last week of Feb, 2017, Sajal Das who earlier associated withIndo Foreign Agency and Indo Friends came to him with Nasir Uddin with one Bill ofEntry where the official Customs Broker was M/s Sadguru Forwarders Pvt. Ltd andSajal Das told him that DC Navneet Kumar instructed to check the consignmentsquickly and clear. Sajal Das told him that it was his job. Since then Nasir Uddin camewith Ranjan, brother of Sajal, and Aloke Ghosh.

58.11,5. From the study of the e-mail account of Sajal Das, it was seen that theimport documents of two other offending firms namely M/s. Lotus Impex and M/s.Ambey Telecom were initially received at the e-mail of one of his firm, M/s. IndoForeign Agency. In this regard, I have observed that the import consignments of theM/s. Lotus Impex and M/s. Ambey Telecom were also intercepted by DRI, Kolkatawhich on examination were found to be grossly misdeclared and for which separateShow Cause Notices have been issued.

58.11.6. In this regard. I recall that vide voluntary statement dated 07.09.2017,Shri Nasiruddin had stated inter alia one Mr. Mandeep was associated with AmbeyTelecom & one Mr. Gullu was associated with Lotus Impex; that in respect ofimport of Lotus Impex (India) and Ambey Telecom, he received payments fromM/s Nirmala Bala Trading & Co, the firm of Sajal Das who Introduced him to Gulluand Mandeep for the two firms. The said Sajal Das also introduced him to saidBadsha @ Sahanshah Mallick of Khidderpore who had imported goods by using IEC ofSri Ram Traders.

58.11.7. I find that he also allowed his office machinery to be used by Shri NasirUddin to receive the mails from the importer and especially from Late Shri MayurMehta and Ms. Swati Vora @ Monika Vora. Wherefrom, it was crystal clear that thegoods were grossly misdeclared and also facilitated the clearance of such goodsthrough Customs.

58,11.8. In his statement recorded under Section 108 of the Customs Act, 1

Shri Sajal Das had denied of having any knowledge of the smuggling, however,69

the bank statement of Pasific Ente rp rises( a nother firm whose consignment was e"6

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5a.11.3. Late Mayur [vlehta, one of the masterminds of the scam, vide hisvoluntary statement dated 22.1O.2017 had stated, inter alia, that Shri NavneetKumar had directed him to import the mis-declared goods through ACC, Kolkata andnominated Sajal Das for clearance of the same and that Shri Sajal Das had furtherdelegated to role of clearance to Shri Nasiruddin intimating him (Mehta) that NasirUddin will assist him in clearance of such misdeclared goods by using the license ofSadguru Forwarders Pvt. Ltd. The same thing was corroborated by Shri Sajal Dasvide statement dated 24.tO.2017 where he confessed to have a meeting MayurMehta in March 2017 in Hotel 02, VIP Road, Kolkata and Shri Das came to know thatthe consignments of Shri Mehta would contain misdeclared goods and therefore hedid not handle the same but he gave the work of clearance of such consignments toMd. Nasir Uddin.

F.No. 533- 2312017 AD.IN (A&A)v of the 16 consignments seized by DRI after intervention on 05.06.2017) it was foundthat on 20-05.2077, an amount of Rs. 5,00,000/- was paid by Pasific Enterprises toNirmala Bala Trading, the firm related to one Shri Sajal Das, elder brother of ShriSajal Das.

58.11.10. As regards to the submission(s) put forward by the Noticee throughwritten communication and PH, I will address them here.

58.11.11. Shri Sajal Das vide reply dated 05.02.2018 had submitted, inter-alia,that:o) My impleadment in the instont SCN is erroneous on the facts and in lsn'. I did not perfornt anywork in relalion to importalion of the subject consipfmenl. ln fact the period between second half of theyeor 2016 andfirst half of the yem 2017 wos full oftragedies for ourfamily. First nry uncle Upal Das died;lhereafter my parents died one after the other. All of them had prolonged illness and prolongedhospilalization. I spent most of nry valuable time visiting doctors, rendering care to the aforesaid persons,attending hospitals and performing death reloled religious rituals. I crave letne lo submit relevanl medicolpopers and death certificates in this regard at the time of hearing, if necessary- As a consequence I had lodecline almost every new jobs including but limited to JrAs Lotus Inpex (India) and A4/s Ambey Telecomand advised the clients to engoge someone else. The SCN wrongly twisted this fact in an attempt to prove illmolive on our part.

Observation: As per records available with me, I do not observe any copy of deathcertificate tendered in support of his claim. Also I find Shri Sajal Das represented M/sLotus Impex (India) and M/s Ambey Telecom both of which were found to be part ofthe scam. Also I observe that, despite learning the wrong intentions of Shri MayurMehta after meeting with him at Hotel 02 on VIP road, Kolkata he had chosen not toinform the Depaftment but had actively assisted the mastermind to put his deviousplan into motion much in violation of the Customs Act, 1962.

b) I am not in any y)ay connected with l,[/s Nirmala Bala Trading Company. So far I am oware said frntis sole proprietorship concern ofChandan Das who deals in DEPB and other scrips. I did not receivc anypayment from Ms Nirmala Bala Trading Company or its sole proprietor Chanden Das nor I paid any one

on behalf of the soid firrn. I have no power or authority to operote bank accounts of l,f/s Nirmala BalaTrading Co. or deal with its transactions and accoants.

Observation: I observe that Shri Sajal Das had stated that Shri Chandan Das washis elder brother i.e. family. I also observe that Shri Nasiruddin vide voluntarystatement dated 09.07.2017 had stated inter alia that in respect of import ofLotus Impex (India) and Ambey Telecom, he received payments from M/sNirmala Bala Trading & Co. I notice that Shri Nasiruddin refers to M/s Nirmala BalaTrading & Co. as the firm of Shri Sajal Das. As per the statement of Shri Sajal DasShri Nasiruddin used to work in his firms till December, 2016. From this informaobserve that Nasir being an old acquaintance of Shri Sajal Das would havefamiliar with the work involving Shri Sajal Das as a proprietor of lY/s. K.C.Das

tio

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58.11,9. From the Call Data Records, I observe that Shri Sajal Das was in touchwith Shri Navneet Kumar, Shri Pranabananda Bala, Shri Vikki Kumar, Shrl Nasiruddlnand Miss Swati vora alias Monica, who are all the key co-conspirators in the scamwhich was unearthed by DRI, KZU. I observe that Shri Sajal Das did not disclose thecontents of those calls which he had with the aforementioned people. I also observethat vide personal hearing dated 24.O2.2022, attended by Shri V.N. Dwivedi,authorised legal representative of Sajal Das, it was mentioned that Sajal Das knewMayur Mehta & Swati Vora as they were connected to the same CHA fraternity. Inthis regard, I observe that if Sajal Das knew them, their reputation would also havebeen known to him. Still he went on to meet Shri Mayur Mehta at a hotel in VIP roadand helped him find a scapegoat for his devious plans.

F.No. S33- 23l20i7 ADIN 1A&A)vAnd a Customs Broker & Partner of Indo-Friends agency. I find no cogent reason asto why Shri Nasiruddin would require to lie about whose firm M/s Nirmala BalaTrading Company if it was not the impression given by Shri Sajal Das by exercisingeffective control of the decisions taken in the same firm including the finances.

t1 ,,ls rtgunl.s r uiling of docuntetis is contentetl. it is krtovrt fuct tk oll thc ('Bs do rtot lua'c o/Jit'c sctu1t irt tlu -1ir ('urgo ('ontpltx. ('Bs exteud co-op?t'.tlion in .shu'ing ofJice uppo"ulus. ntuchirur.t undequipntent.s. Thc tlotuttrcnls nruiled in D\' ('onlpulct- rcra nreur Jitr Nu.sir Uddin. lltithout httring otreu.\on to slt,\pecl un\lhingfoul, I ullou,ed u.ser ol nf contpuler t,ithoul nry c'onsideralion und purell' out ofC'ourtes1,. ln uro- evcnl documenl ./ixod in ntl compuler ore llte sunrc docuntenl x'hich rere./iled in theDe part nrcnl us u I I eged inve s I igul i rtt rct'e u I s.

Observationi I find no merit in the submission of non involvement as Shri Sajal Dascould not adduce any evidence regarding his location in the building as and when thecomputer was accessed by Shri Nasiruddin to machinate the devious scheme of mis-declaration. As it has been established that Shri Sajal Das was one of the trustedmen of Shri Navneet Kumar, I find it very hard to imagine that Shri Das did not haveany idea about the kind of work Shri Nasiruddin was using his computer for. Also asper available records, I find that Shri Nasiruddin did not have any CB licence. So theextension of cooperation among CBs as stated by Shri Sajal Das cannot apply to ShriNasiruddin as he ls not a Customs Broker.

58.11.12. Based on the records available before me as discussed, i conclude thatShri Sajal Das had connived with unscrupulous person like Nasiruddin and lateMayur Mehta with active support of Customs Officers Navneet Kumar (Noticee No. 4),Shri Vikki Kumar (Noticee No. 5) and Shri Pranabananda Bala (Noticee No. 6) andothers and abetted fraudulent imports in the IEC of M/s. Sushil Kumar Singh, by wayof enabling Shri Mayur Mehta to use the services of Shri Nasiruddin and even gavefree access to his office facillties to Shri Nasiruddin for filing two Bills of Entry Nos.9948788 and 9948804 both dated 03.06.2OL7 and with intention to file another BoEcorresponding to one Air Way Bill No. 27715543404 dated 05.06.2017 by mis-declaring the description and value oF the imported goods therein, much in violationof Section 46 of Customs Act, 1962.

58.11.13, In order to do so, Shri Sajal Das against undue gratification allowedunscrupulous persons like Nasiruddin and late Mayur Mehta to file Bills of Entry Nos.9948788 and 9948804 both dated 03.06.2017 in the name of M/s. Sushil KumarSingh for the impugned fraudulent imports as well as communicate with Miss SwatiVora regarding examination of specific cartons of the same from his office premises,as discussed above. Thus, by these acts of commission in abetting the scam offraudulent lmport of (i) Mobile Phone Accessories, (ii) Branded Shoes, (iii) WristWatches of Different International Brand, (iv) Branded high-end mobile phones,motherboards/ logic cards/ Accessories kit for branded television sets/ speakers, etc.by mis-declaring them as generic items with total mis-declared values to the tune ofRs.9,75,73,1851- (Rupees Nine Crore Seventy Five Lakh Seventy Three ThousandOne Hundred and Eighty Five only), knowing about the illegal nature of the goodssought to be imported

a) has rendered the goods imported under BoE No. 9948788 dated 03.06.2017liable to confiscation under sectlon 111(d), 111(f), 111(i), 111(l), 111(m) and119 of the Customs Act. 1962 read with Rule 6 of IPR Rules, 2007 for reasonsdiscussed supra;

b) has rendered the goods imported under BoE No. 9948804 dated 03.06.2liable to confiscatlon under section 111(d), 111(f), 111(i) and 111(l) of

,; /)//SCN: DRI/ KZU/CF/INT-75/Pf. Sri Ram/464O dtd 4.72.77 Page 137 of

F. No. S33- 2312017 ADiN (A&A)

1962 read with Rule 6 of lPR Ruies, 2007 for reasons discussedCustoms Act,supra; and

c) has rendered the goods imported under AWB No. 21775543404 dated05.06.2017 liable to confiscation under section 111 (d), 111 (f) and 119 ofCustoms Act, 1962 read with Rule 6 of IPR Rules, 2007, consequently havlngmade himself liable for penalty under Section 112(a)(i) of Customs Act,1962.Held so.

58.11.14, Further, I observe that Shri Sajal Das against undue gratificationallowed unscrupulous persons to machinate a scam of importing contraband by wayof filing Bills of Entry mis-declaring the description and value of the imported goodstherein, much in violation of Section 46 of Customs Act, 1962 as discussed abovewith a view to import counterfeit goods whlch are prohibited under IPR Rules, 2007by concealment among generic import goods. Thus, by tacit approval bychoosing to overlook the errant action Shri Nasiruddin, enabling people like SushilKumar Singh to lend IEC to unscrupulous persons for perpetrating the scam offraudulent import of (i) Mobile Phone Accessories, (ii) Branded Shoes, (iii) WristWatches of Different International Brand, (iv) Branded high-end mobile phones,motherboards/ logic cards/ Accessories kit for branded television sets/ speakers, etc.by concealing them as generic items with total mis-declared values to the tune of Rs.9,75,73,L85/- (Rupees Nine Crore Seventy Five Lakh Seventy Three Thousand OneHundred and Eighty Five only), has rendered the said imported goods liable toconfiscation under relevant provisions of Customs Act, 1962 as discussed above andconsequently made himself also llable for penalty under Section 112(b)(i) ofCustoms Act,1962. Held so,

58.11.15. Further, I observe that Shri Sajal Das has against undue gratification,knowingly kept silent on the scam that he knew about and by his act of tacitapproval caused to be used false declaration u/s 46 of the Act, ibid in the transactionof impoft business by way of allowing unscrupulous persons like Shri ShahanshaMalllk alias Badshah, Shri Navneet Kumar and Shri Arnab Sinha to use IEC of ShriSushil Kumar Singh by way of filing Bills of Entry, mis-declaring the description andvalue of the imported goods therein, much in violation of Section 46 of Customs Act,1962 as discussed above. Thus, by tacit approval by choosing to overlook the errantaction of Shrl Nasiruddin in the scam of fraudulent import of (i) Mobile PhoneAccessories, (ii) Branded Shoes, (iii) Wrist Watches of Different International Brand,(iv) Branded high-end mobile phones, motherboards/ logic cards/ Accessories kit forbranded television sets/ speakers, etc. by mis-declaring them as generic items withtotal mis-declared values to the tune of Rs. 9,75,73tL851- (Rupees Nine CroreSeventy Five Lakh Seventy Three Thousand One Hundred and Eighty Five only), ShriAIoke Ghosh has rendered the said impofted goods liable to confiscation underrelevant provisions of Customs Act, 1962 as discussed above and consequently madehimself also liable for penalty under Section 114(AA) of Customs Act,1962. Held so.

54.12, Shri Santosh Mishra (Noticee No. 12) & Shri Joydeb Das (NoticeeNo. 13)

58.12.1. From the investigation conducted by DRI, I observe that Shri SantoshMlshra and Shri Joydeb Das formed the last leg of the setup which was spawnedthrough the collective endeavour of unscrupulous person Iike Shri Navneet Kumar,Shri Nasiruddin, late Mayur Mehta, Miss Monica and others.

S

58.12,2. Shri Santosh was in charge of cash p

each consignment. It was his responsibility to trans

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ayments to Shri Nasirudd i

port the customs cleared

Page 138 of 145

F.No. S33 2312017 ADJN (A&A)

Vora to deliver thevvia train to Delhi where Mayur Mehta would wait with Miss Swatsame to the actual importers.

58,12.3. Both Santosh Mishra and -loydeb Das were employee of Mayur N4ehta atKolkata. Investigation reveals that both Santosh Mishra and Joydeb Das arrangedtransporting of the mis-declared consignments after Customs clearance and for thisthey were in regular contact with Nasiruddin and Aloke Ghosh. Mayur Mehta alsomade payment to Nasir Uddin though them.

58.12.4. From the voluntary statement of SHri Nasiruddin dated 06.07.2017, it islearnt, inter-alia that SHri Santosh and Shri Joydeb used to provide the KYC of IECname lenders and effectively helped initiate the scam, under the supervision of lateMayur Mehta through his trusted cohorts Miss Swati Vora and Shri Navneet Kumar

58.12.5. Though both Santosh Mishra and loydeb Das could not be examined incourse of investigation (as they were not available at the office of Mayur Mehta atKolkata) they knew fully well that the consignments are misdeclared containingcontraband items and are liable to be confiscated under the Customs Act, 1962 andyet they carried out their job and thereby rendered themselves liable to penaltyunder the Customs Act, 1962.

58.12.6. It fufther appears that Santosh Mishra and Joydeb Das knowingly andintentionally used or caused to be made fake/forge import documents which do notcorrespond to the material imported by M/s. Sushil Kumar Singh. Therefore, itappears that said Santosh Mishra and Joydeb Das has rendered themselves liable forpenal action under Section 112(a)(i), Section 112(b)(i) and Section 114AA of theCustoms Act,1962 for their acts of omission and commission.

59. After having discussed the applicability of penalty u/s 172 (a), 112 (b) and114AA on the Noticees, I will try to analyse the issue of whether the AdditionalDirector General of DRI, KZU is the competent authority to issue the ShowCause Notice under the Customs Act, 1962- an issue raised by the Noticee Nos.3,4,5,6,7 and 1,0

59.1. In this regard, I find that the subject Show Cause Notice was issued by theAdditional Director General, DRI, Kolkata under Section 124 of the Customs Act,1962. Section 124 of the Customs Act, 1962 reads as-

"Section 124 ofthe Customs Act, 1962:- Issue ofShon'Cause Notice before confiscation ofgoods, etc.

"No order confscating any goods or imposing any penally on any person shall be made tmder thisChapter unless the owner of lhe goods or such person

(a) is given a notice in l[writing with the prior opproval of the oficer of customs not below the rank of aDeputy Commissioner of Cusloms, informingJ him of the grounds on which it is proposed to conJiscate thegoods or to impose a penalty;

(b) is gitten an opportunily of making a represenlalion in writing u'ilhin such reasonable lime as may be

specified in the notice ogoinst the grounds ofconfiscation or imposition ofpenalty mentioned therein; and

(c) is given a reasonable opportunily of being heard in lhe malter: Provided thot the notice referred to inclause (a) and the representation refeted to in clsuse (b) nay at lhe requesl of the person concerned be

59,2. In this regard, I find from the judgment of the High Court of Calcutta inmatter of Navneet Kumar Vs Union of India, [2018 (362) ELT 17 (Cal)]

SCN: DRI/ KzU /cF/INT-7s/Pt. Sri Ram/4640 dtd 4.72.77 Page 139 of L

"@'6

F. No. 533- 2312017 ADJN {A&A)wth" Hon'bl" High Court of Calcutta passed an Order dated 05.11.2019 in favour ofthe Department in respect of Section 124 of the Customs Act, 1962 and the relevantportions are furnished below:-

The quesliort to he utstrered itt thi.s ul4teul i.s tthethcr the .ldditionctl Dircctor Generul. tlrc Zonulunit. Kolkutct ol the DRI ltud the uuthorit.t'ctttd the po'rrer lo issue the SCN duled 02.12.2017.

At the outset I obsetta that lhe orgunrcnl nrude lltal the SCN had to be issued by u proper olfcer isincorrecl. Section 2(31) of the said Act enocts thdl o proper fficer is one vho is ttssigtad.firnctions lo beperfbrnted b), thol colegory ol ofJicer, b, the Boarcl or the Prirciple L'ontntissioner of ('ustonts or('ortrntissioner of (lttstonts. On 2'"1 Mq,, 2012, the Board de,signated sonte oficers lo he proper fficers.While designating such fficer,s the Junction lhol eoch of such oficers had to perform under a speci"fiedSection of the said Acl was provided. Each of lhese Sections referred to a proper olrtcer to discharge the

funclions specifed in that Section. Seclion 121 is not one oJ'those Sections. ln Seclion 121 of the soid Act,the power hos been given to on officer of Custonts not below the rank of on Assistonl Comntissioner oJ'Custo,rts to issue a SCN. There is no reference lo a proper oficer. In those circunlstances, the orgunrcnt oflhe respondent $,ril petilioners or the finding of the learnt judge thal the impugned SCN had not beenissued by a proper officer has no basis whatsoeyer and is rejected outrighl.

----All the oppeals are allowed. The inpugned judgntent and order dated 10.07.2018 is set oside.All interim orders are vacated. All lhe connecled dpplicalions are disposed of by this order- All the writapplications are disnissed. "

59.3. It is observed from the judgment dated 09.03.2021 of the Hon'ble SupremeCourt of India in the case oF M/s Cannon India Pvt. Ltd. Vs. Commissioner ofCustoms, Civil Appeal No. 1827 of 2018 that the Additional Director General of DRI isnot "the proper officer" as defined under Section 2(3a) of the Customs Act, 1962 toissue a Show Cause Notice under Section 2B(a) of the Customs Act, 1962, which hasnot been invoked in the instant case. However, it is gathered that four ReviewPetitions (Dy. No. 9580-2021, Dy. No. 9584-2021, Dy. No. 9587-2021 and Dy. No.9591-2027) have been filed by the Department against the judgment of the Hon'bleSupreme Court dated 09.03.2021 in the matter of Cannon India Pvt. Ltd. and theseare pending before the Hon'ble Supreme Court. Thus, the contention of the Petitionerabout jurisdiction and competence of DRI to issue SCN under Section 124 of theCustoms Act, 1962 is not valid.

59.4, Moreover, Hon'ble Supreme Court, in the case of Canon India Pvt Ltd., has notconsidered certain provisions of Customs Act and Notifications, including:-

1) Non consideration of Sec 28(11) - The provisions of Section 28(11) ofCustoms Act 1962 expressly state that all persons appointed as officers of Customsunder the Customs Act 1962'shall be deemed to have and always had the powers ofassessment and always had been the proper officers'. This was upheld by the Hon'bleBombay High Court vlde its Order dated 03.17.2014 in the case of Sunil Gupta vs.Union of India.

2) Further, by staying the order of Hon'ble Delhi HighImpex case, Hon'ble Supreme Court has also supported thejudgment in the case of Canon India has not considered this validlight of above position, the judgment in the case of Canon India bCourt is per incuriam.

SCN: DRI/KZU /CF/INT-7' / Pt. Sri Ram/464O dtd 4.72.77

Court in Mangalisaid provision. Asprovrsrony Hon'ble

''------()nc hus lo ltxtk ut Sedion 121 ol thc tuid,ltl. It .\ .r's lhut ott order tttt/isculing cnty grtrxl: or

offircr o/ Cuslonts tlot helor lhe rtnk of un,lssisl.tnt ('ottnti.\.\iottcr of Cuslorn.s.

Page 140 of

F.No.533- 2 3/2017 ADJN (A&A)

3) Vide Order dated 18.02.2011 in Commissioner of customs vs. Sayed Alicase, Hon'ble Supreme Court has clearly held that the specific functions are to beassigned in terms of Section 2(34) of the Act. If an officer is speciFied in section 3 bydesignation or is appointed as officer of Customs under section 4, entrustment offunctions of Customs officer on him under section 6 becomes superfluous.

4) The fact that DRI officers are Customs Officers and are envisaged so by thestatute is also clear from the provisions of Section 151 of Customs Act, 1962.

5) In terms of Notification no. 31/97-CUS(NT) dtd. 07/O7/1997 the CentralGovernment has appointed all the officers of the Directorate of Revenue Intelligenceas olficers of Customs.

6) Further in terms of Notification No.l7/2O02-CUS(NT) dtd.07103/2002 theAdditional Director General, Additional Director/Joint Director and Deputy/ AssistantDirector of Directorate of Revenue Intelligence have been appointed as officers ofCustoms with jurisdiction over the whole of India.

7) In terms of Notification No.44l2Otl-CUS (NT) dld. 06/07/2011, the CentralBoard of Excise and Customs has assigned the functions of the proper offlcer for thepurpose of Section 17 and Section 28 of the Customs Act, 1962 to the AdditionalDirector General, Additional Director/Joint Director and Deputy/Assista nt Director ofDirectorate of Revenue Intelligence.

60. While deciding each issue as above, I have examined the judgments cited bythe Noticees in their favour. It needs to be appreciated that each case is based on itsown facts and circumstances and my findings as above are based on the nature ofoffence committed by the Notlcees and therefore, unless the facts of the relied uponcase are shown to be the same as in this case, any reliance on the same would notbe in true spirit of judicial discipline. I find that none of the cases relied upon by theNoticees are applicable to the present case.

61. In view of above discussion and findings, I pass the following order:

ORDER

I order for confiscation of the said 6 pieces of wrist watches marked as EMPORIOARMANI, having seizure value of Rs. 1,12,374/- together with Wrlst Watches ofbTands BURBERRY, CARRERA, CARTIER, GUCCI, LONGINES, MICHAEL KORSMONT BLANC, OMEGA, PATEK PHILLIPE, PIAGET, RADO, ROLEX, TISSOT hAViNgseizure value of Rs. 3,15.13,918/- and the High Value branded mobile phones,Branded Earphones, Branded headphones and branded mobile covers etc.together valued at Rs. 4,73,89,139/- imported under cover of Bill of Entry No.9948788 dated 03.06.2017 and 2952 pairs of NIKE shoes having seizure value ofRs 1,26,32,400/- and 1008 pairs of ADIDAS shoes having seizure value of Rs

69,12,000/ - imported under cover of the Bill of Entry No. 9948804 dated03.06.2017 and the Motherboards, Speakers, logic cards and other accessoriesfor branded televisions imported under cover of the Air Way Bill217t55434O4 dated 05.06.2017 having a total seizure value of Rs 6,55,9

I

;\

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In that view of the matter by the settled position, the Noticee(s) cannot allegethat ADG, DRI lacked the jurisdiction to issue a Show Cause Notice. Hence I am wellwithin my legal rights to adjudicate the subject SCN.

F.No.533- 2312017 AD]N (A&A)

under Sections 111(d), 111(f), 111(i), 111(l) & 111(m) and Section 119 of theCustoms Act,1962 read with Rule 6 of IPR Rules, 2007.

II. Out of the said seized goods, I order for destruction of 6 pieces of wrist watchesmarked as EMPORIO ARN4ANI, having seizure value of Rs. 1,12,374/- and 2952pairs of NIKE shoes having seizure value of Rs 7,26,32,4OO/- and 1008 pairs ofADIDAS shoes having selzure value of Rs 69,12,000/- in terms of Rule 11 (1) ofthe IPR Rules, 2007.

III. I impose a penalty of Rs, 3O,OO,OOO/- & Rs, 3O,OO,OOO/- (Total Rs.60,00,000/-) (Rupees Sixty Lakh only) under Section 112(a)(i) & 112(b)(i)respectively of the Customs Act, 1962 upon the Noticee No. 1, i.e., M/s SushilKumar Singh, [IEC-O2O6OL64L77 Proprietor Sri Ram Traders for its acts ofcommission and omission.

IV. I impose a penalty of Rs. 5O,OO,OOO/- & Rs. 5O,OO,OOOI- (Total Rs.1,OO,OO,OOO/-) (Rupees One Crore only) under Section 112(a)(i) & 112(b)(i)respectively of the Customs Act, 1962 upon the Noticee No. 2, i.e., ShriShahansha Mallik Alias Badshah for his acts of commission and omission.

V. I impose a penalty of 1O,OO,OOO/- & Rs. 1O,O0,OOO/- (Total Rs.2O,OO,OOO/-) (Rupees twenty Lakh only) under Section 112(a)(i) & 112(b)(i)respectively of the Customs Act, 1962 upon the Noticee No. 3, i.e., M/sSadguru Forwarders Pvt. Ltd. for its acts of commission and omission.

VL I impose a penalty of Rs. 5O,OO,OOO/- & Rs. 5O,OO,OOOI- (Total Rs.1,OO,OO,O00/-) (Rupees One Crore only) under Section 112(a)(i) & 112(b)(i)respectively of the Customs Act, 1962 upon the Noticee No. 4, i.e., ShriNavneet Kumar for his acts of commission and omission.

VII. I impose a penalty of Rs,2O,OO,OOOI- & Rs.2O,OO,OOO/- (Total Rs.4O,OO,OOO/-) (Rupees Forty Lakh only) under Section 112(a)(i) & 112(b)(i)respectively of the Customs Act, 1962 upon the Noticee No. 5. i.e., Shri VikkiKumar for his acts of omission & commission.

VIII. I impose a penalty of Rs. I5,OO,OOO/- & Rs. 15,OO,OOO/- (Total Rs.3O,OO,0OO/-) (Rupees Thirty Lakh only) under Section 112(a)(i) & 112(b)(i)respectively of the Customs Act, 1962 upon the Noticee No.6. i.e., ShriPranabananda Bala, for his acts of omission & commission.

X. I impose a penalty of Rs.5O,OO,OOO/- & Rs.5O,OO,OOO{'(Total Rs.1,OO,OO,OO0/-) (Rupees One Crore only) under Section 112(a)(i) & 112(b)(i)respectively of the Customs Act, 1962 upon the Noticee No. 8. i.e., Ms. SwatiVora @ Monika , for her acts of omission & commission.

Xt. I impose a penalty of Rs. 5O,OO,OOOI- & Rs. 5O,OO,OOO,/- (Total1,OO,OO,OOO/-) (Rupees One Crore only) under Section 112(a)(i) & 112(b

Rs

respectively of the Customs Act, 1962 upon the Noticee No. f . i.e.,Sinha for his acts of omission & commission.

Sh ri Ar

1

SCN: DRI/ KzU /CF/ INT-75/Pt. Sri Ram/4640 dtd 4.72.77 Page 142 of

Ix. I impose a penalty of Rs. 5,OO,OOO/- & Rs. 5,OO,OoO/- (Total Rs.1O,OO,OOO/-) (Rupees Ten Lakh only) under Section 112(a)(i) & 112(b)(i)respectlvely of the Customs Act, 1962 upon the Noticee No, 7. i.e., Md. NasirUddin, for his acts of omission & commission.

F. No. S33-23/2017 ADiN (A&A)

XIL I impose a penalty of Rs, 5,OO,0OO/- & Rs. 5,OO,OOO/- (Total Rs.1O,OO,O0O/-) (Rupees Ten Lakh only) under Section 112(a)(i) & 112(b)(i)respectively of the Customs Act, 1962 upon the Noticee No. 10, i.e., ShriAloke Ghosh for his acts of omission & commission.

XIIL I impose a penalty of Rs. 5,OO,OOO/- & Rs. 5,OO,OOO/- (Total Rs.1O,OO,OOO/-) (Rupees Ten Lakh only) under Section 112(a)(i) & 112(b)(i)respectively of the Customs Act, 1962 upon the Noticee No. 11. i.e., Shri SajalDas for his acts of omission & commission.

XIV. I impose a penalty of Rs. 2,O0,OOO/- & Rs. 2,OO,OOO/- (Total Rs.4,OO,OOO/-) (Rupees Four Lakh only) under Section 112(a)(i) & 112(b)(i)respectively of the Customs Act, 1962 upon the Noticee No. 12. i.e., ShriSantosh Mishra for his acts of omission & commission.

XV. I impose a penalty of Rs. 2,OO,OOO/- & Rs. 2,OO,OOO/- (Total Rs.4,OO,OOO/-) (Rupees Four Lakh only) under Section 112(a)(i) & 112(b)(i)respectlvely of the Customs Act, 1962 upon the Noticee No. 13. i.e., ShriJoydeb Das for his acts of omission & commission.

XVI. I impose a penalty of Rs. 4O,OO,OOO/- (Rupees Forty Lakh only) underSection 114AA of the Customs Act, 1962 upon the Noticee No. 1, i.e,, M/sSushil Kumar Singh, IIEC-O2O6O!64L77 Proprietor Sri Ram Traders for itsacts of commission and omission.

XVII. I impose a penalty of Rs. 5O,OO,OOO/- (Rupees Fifty Lakh only) under Section114AA of the Customs Act, 1962 upon the Noticee No. 2. i.e., ShriShahansha Mallik Alias Badshah for his acts of commission and omission.

XVIII. I impose a penalty of Rs. 2O,OOpOO(- (Rupees Twenty Lakh only)under Section 114AA of the Customs Act, 1962 upon the Noticee No. 3, i.e.,M/s Sadguru Forwarders Pvt. Ltd. for its acts of commission and omission.

XIX. I impose a penalty of Rs.5O,OO,OOO/- (Rupees Fifty Lakh only) under Section114AA of the Customs Act, 1962 upon the Noticee No. 4, i.e., Shri NavneetKumar for his acts of commission and omission.

XX. I impose a penalty of Rs. 2O,OO,OOO/- (Rupees Twenty Lakh only) underSection 114AA of the Customs Act, 1962 upon the Noticee No. 5. i.e., ShriVikki Kumar for his acts of omission & commission.

XXI. I impose a penalty of Rs. 15,OO,OOO/ - (Rupees Fifteen Lakh only) underSection 114AA of the Customs Act, 1962 upon the Noticee No. 6. i.e., ShriPranabananda Bala, for his acts of omission & commission.

XXII. I impose a penalty of Rs. lO,OO,OOO/- (Rupees Ten Lakh only) under Section114AA of the Customs Act, 1962 upon the Noticee No. 7, i.e., Md. Nasir Uddin,for his acts of omission & commission.

XXIII. I impose a penalty of Rs.5O,OO,OOO/- (Rupees Fifty Lakh only) underSection 114AA of the Customs Act, 1962 upon the Noticee No, 8. i.e.,'Ms.

SCN: DRI/ KzU /CF/INT-7,/ Pt. Sri Ram/464O dtd 4.72.77 Page 143 of

Swati Vora @ Monika, for her acts of omission & commission.

t

F. No. 533' 2312017 ADIN {A&A)vxxIv.l impose a penalty of Rs. 50,OO,OOO/- (Rupees Fifty Lakh only) under Section114AA of the Customs Act, 1962 upon the Noticee No. f. i.e., Shri ArnabSinha for his acts of omission & commission.

XXV, I impose a penalty of Rs. 5,OO,OOO/- (Rupees Five Lakh only) under Section114AA of the Customs Act, 1962 upon the Noticee No. 10, i.e., Shri AlokeGhosh for his acts of omission & commission.

XXVLI impose a penalty of Rs. 5,OO,OOO/- (Rupees Five Lakh only) under Section114AA of the Customs Act, 1962 upon the Noticee No, 11, i.e., Shri Sajal Dasfor his acts of omlsslon & commission.

XXVII. I impose a penalty of Rs, 4,OO,OOO/- (Rupees Four Lakh only) underSection 114AA of the Customs Act, 1962 upon the Noticee No. 12. i.e., ShriSantosh Mishra for his acts of omission & commission.

XXVIII. I impose a penalty of Rs. 4,OO,OOO/- (Rupees Four Lakh only) underSection 114AA of the Customs Act, 1962 upon the Noticee No. 13. i.e., ShriJoydeb Das for his acts of omission & commission.

62. This Order-in-Original is issued without prejudite to any other action that maybe taken against the Noticees of the subject Show Cause Notice or any otherperson(s) concerned with this case under the Customs Act, 1962 or any other law forthe time being in force In India.

63. A copy of Order-in-Original has been uploaded on the official website ofKolkata Customs in compliance of section 153 (1) (e) of the Customs Act, 1962

3) -1

(DEEP SH AR)Principal Commissioner of Customs

Airport & Air Cargo Complex CommissionerateCustom House Kolkata

via RPAD/ SPEED POST

To,

1. M/s Sushil Kumar Sangh, UEC-02060164171 Proprletor Sri Ram Traders, 28,

Jhill Road, Cossipur, Kolkata-700002 (through its proprietor Shri Sushil Kumar

Sinsh Singh)

2. Shri Shahansha Mallik Alias Badshah,6olHl Ll, Dr. Sudhir Basu Road

(Biscuit Galli), Khidderpore, Kolkata-7OOO23

3. M/s Sadguru Forwarders Pvt. Ltd. C-10, Sahar Roy Apartments, opp.

Sahar Cargo Complex, Sahar, Andheri East, Mumbal- 400 099

4. Shri Navneet Kumar, Flat No. 303, 3rd Floor, Block:D-4, Kendriya Vihar

Phase- II, 169, Badra North, Shaktigarh. Birati, Kolkata - 700051

5. Shri Vikki Kumar, Eastern Tower, Flat - 2E, 398 Ho-Chi-Minh Sa

Sakuntala Park, Kolkata - 700061

Y1.'t

r

13

SCN DRI/ KZU/CF/INT-75 / Pt. Sri Ram/464o dtd 4.72.77 Page 144 of 96

6

7

11.

12.

13.

8

i No. 533 23l2C17 ADiN (A&A)

Shri Pranabananda Bala, \ear Ananda Bhaban, Durga Nagar South,

Rabindra Nagar, Kolkata - 700065

Md, Nasir Uddin, Vill. - Chowmoha, P.O.- lvludiahat, P.S. - Shasan, 24

Parganas (N), Kolkata - 700128

Ms. Swati Vora @ Monika, Sai Krupa 'A' CHS, 2nd Floor, 207 / A, Vinayak

Thakur Nagar, Goddev Naka, Bhayander (E), Thane - 401105, Maharashtra

Shri Arnab Sinha, Director NAF Logistics, 20, N.S.Road, Kolkata-700001

(Residence- 45/2/Ul, Choudhurypara Lane, Howrah-711104

Shri Aloke Ghosh, Vill.- Beraberi Ghosh Para, P.S. - Rajarhat Gopalpur,

Kolkata - 700136.

Shri Sajal Das, 68/38 Jessore Road, Amarpally, Kolkata -7OOO74

Shra Santosh Mishra, C/o Dabke Clearing & Forwarding Pvt. Ltd., Usasi

Apartment, Ground Floor, Room No. 1, 381/1 Motilal Colony, 2 No. Airport

Gate, Kolkata - 700081

Shri Joydeb Das, C/o Dabke Clearing & Forwarding Pvt. Ltd., Usasi

Apartment, Ground Floor, Room No. 1,38U1 Motilal Colony, 2 No. Airport

Gate, Kolkata - 700081

toit*Y-Assistant Commissioner of Customs

Central Adjudication Cell, Airport & Air Cargo Complex CommissionerateCustom House, Kolkata

SCN: DRI/ KzU / CF/ INT-75/ Pt, sri Ram/4640 dtd 4.72.77 Page 145 of

9.

10.