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7 C/89265,89276/2018 "10.1 The Noticees has contended that both the noticees i.e. M/s. Marathon Corporation, Mumbai and Shri Nilesh Katira one of the partners in M/s.Marathon Corporation had no role in the attempted export of prohibited goods and they didn't abet the act of Commission of Sanjay Pawar rendering the goods liable for confiscation, hence they are not liable for penal action under Section 114(i) of the Customs Act, 1962. I have gone through the present SCN and the reply submitted by the noticees and find that Sanjay Pawar is the main conspirator who hatched a criminal conspiracy to smuggle Red Sanders and he not only arranged the Red Sanders, but also managed to pose as an agent for overseas clients for vegetables and contacted M/s.

Marathon Corporation, for supply of the vegetables. Sanjay Pawar chose M/s.Marathon Corporation, Mumbai because he required a bonafide exporter for booking a container to load the red sanders and the said company was a regular exporter from ICD Janori, and this would have ensured smooth clearance through Customs at ICD Janori. Further, he was aided by M/s Marathon Corporation, who neither asked for any documents about the credentials of Sanjay Pawar nor verified the credentials of Sanjay Pawar, and also allowed the container booked by them Marathon, along with the goods to be transported by the truck trailer arranged by Sanjay Pawar. The said Sanjay Pawar also appears to have replaced the declared goods with the prohibited Red Sanders enroute ICD Janori to JNPT Port. Sanjay Pawar not only replaced the declared cargo with prohibited goods but also appears to have removed the original Central Excise & Custom Bottle Seal number affixed on the said container while replacing the goods and faked the same with the tampered Seal with the same mark and number in order to hoodwink the authority in case the container was checked enroute to Port for smooth sailing of the cargo. 10.2 M/s. Marathon Corporation, Mumbai have aided and abetted Sanjay Pawar in the smuggling of prohibited Red Sanders by exhibiting gross negligence in not verifying the address of Sanjay Pawar, not asking for the PAN Card of Sanjay Pawar and also allowing the container booked by them along with the goods to be transported by the truck trailer to be arranged by Sanjay Pawar. I find that M/s.Marathon Corporation, 8 C/89265,89276/2018 Mumbai have filed the impugned shipping bill under claim of drawback and hence they are responsible for the goods as exporters. These actions on the part of M/s.Marathon Corporation have aided and abetted the purported smuggling of Red Sanders by Sanjay Pawar and his accomplices. 10.3 I find that Shri Nilesh Katira, the partner of M/s.Marathon Corporation, the main acting partner of the said exporting firm, by his own admission, he had stated that he was responsible for all affairs of the firm as only he looked after all the matters. He is in this export business since long as before Marathon as he was operating M/s.Siddhivinyak Exports. This amply clarifies that he was well aware of the Rules / Acts and provisions made therein under and compliance thereof by an exporter/ importer. Despite being aware of these facts, he dealt with so called Sanjay Pawar in a very casual manner without taking into consideration the basics of the care and precautions any exporter/importer is required to exercise before making any deal. As a prudent businessman/exporter, he was required to know the credentials of the person he was dealing with. The failure on the part of Shri Nilesh Katira shows that he had taken his business too lightly and had also taken least care of the provisions of rule of land governing the exports. While he attempted to export the first consignment of Tomotoes to buyer linked with the Sanjay Pawar, he got the experience that overseas buyer or the Sanjay Pawar is not trust worthy. Despite that experience he went ahead in dealing with the said Sanjay Pawar for further exports and in this dealing also, the amount agreed was not received by him in advance as agreed upon in spite of the repeat experience, he went ahead with future exports. Shri Nilesh Katira neither attempted to verify the credential of Sanjay Pawar nor of the overseas buyer named by Sanjay Pawar, despite of he was a frequent visitor to Dubai for his export business as most of their overseas clients were based there. Same applies to the case of Sanjay Pawar as well as the driver with whom the container was sent by Sanjay Pawar for stuffing. Shri Nilesh Katira inexplicably neither asked for the driver's particulars in the form of PAN Card nor address proof or aadhar card or any identification proof containing his photograph nor verified his credential before handing over the goods to him.

9 C/89265,89276/2018 These actions of Shri Nilesh Katira of M/s. Marathon Corporation, Mumbai clearly have aided and abetted the purported smuggling of Red Sanders by Sanjay Pawar and his accomplices. 10.4 Further, I find that the noticees have knowledge of Public Notice No. 17/2012 and at the cost of their KYC documents they arranged the empty container and allowed the container booked by them (Marathon) along with the goods to be transported by the truck trailer arranged by Sanjay Pawar without asking for any documents about the credentials of neither Sanjay Pawar nor the driver of the truck trailer. The Sanjay Pawar took stock of this approach of M/s.Marathon Corporation and Shri Nilesh Katira and make them part of his plot of smuggling of Red Sender. Their careless approach and non-compliance of the know your customer (KYC) norms "enabled said Sanjay Pawar in the illegal attempted export of Red Sanders in violation of prohibition imposed under the provisions of Foreign Trade Policy, rule 11 of Foreign Trade (Regulation) Rules 1993, and Sections 33, 34, 50 & 115 (d) of Customs Act 1962. Said acts of omission and commission of M/s.Marathon Corporation and Shri Nilesh Katira rendered the Red Sanders liable to confiscation under Section 113(d), 113(1), 113(i) and 113(ia) of Customs Act 1962 read with Rule 11 of Foreign Trade (Regulation) Rules 1993, relevant provisions of Indian Forest Act 1927 and for violation of CITES convention. Hence M/s. Marathon Corporation & Shri Nilesh Katira, Mumbai are liable for penal action under section 114 (i) of Customs Act, 1962.

10.5 Further the noticees have cited several case laws. However on comparison of the facts and circumstances of the instant case, it is observed that the said case laws are not squarely applicable in this case. In this context, in the case of Bhavnagar University Vs. Palitana Sugar Mills P. Ltd. - 200312SCC 111, the Hon'ble Supreme Court has observed: -It is well settled that a little difference in facts or additional facts may make a lot difference in the precedential value of a decision." 10.6 The Sanjay Pawar (absconder and still to be apprehended) is the main conspirator in organising the illegal attempted export of Red sanders of international value of Rs 4.70 crores vide Shipping Bill No. 6196190 dated 01.03.2016 with his accomplices. The Summons under Section 108 of the Customs 10 C/89265,89276/2018 Act 1962 could not be issued to Yadav, the Driver as no addresses could be assigned to him. As regards transporter company M/s.Soham Transport, summons was issued but could not be served as it was not found existing on the given address. Since Sanjay Pawar is absconding and is yet to be apprehended, action against him is kept in abeyance. Whenever he and his accomplice are apprehended, their statement(s) will be recorded under Section 108 of the Customs Act, 1962 and used as evidence against him/them and/or any other person to initiate action under Customs Act 1962, Foreign Trade (Regulation) Rules 1993, and relevant provisions of Indian Forest Act 1927 and for violation of CITES convention."