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3 C/52111-52112/2022 World Traders, Delhi. This was based on E mail instructions sent by Shri Anil Batra. The House Bill No. WST1612256 dated 30.12.2016, mentioned the consignee name as Ashtvinayak International. The other two sets of house bill produced before the authorities dated 05.01.2017, however indicated the consignee name as 'Global World Traders'. DRI upon examination of said containers found that concealed behind the declared cargo of paper reams were fire crackers of Chinese origin that were seized vide panchnama dated 22/23.04.2017 alognwith other goods imported. Investigation conducted by the DRI pointed out that as per master bill of lading referred to supra, the said containers had originally been booked by Shri Anil Batra (co-noticee) and proprietor of M/s Ashtvinayak International and for which M/s Codognotto Logistics India Pvt Ltd acted as a freight and forwarding agent. It was pursuant to the E mail dated 27.01.2017 sent from E mail ID [email protected] to Shri Sarvesh Sharma the Sales Executive of freight forwarding firm at his E mail Id [email protected] that the consignee name was changed from Ashtvinayak International to M/s Global World Traders. It is also pointed out in the show cause notice based on the statement of Shri Rajeev Ranjan Singh, Field Executive of Codognotto Logistics India Pvt Ltd that Anil Batra had earlier imported in the name of M/s Yashika International, bearing the same address as Ashtvinayak International (Shri Praveen Batra being the proprietor of Yashika International).

6. The learned Adjudicating Authority in his findings as regards the appellants, has inter alia held as under :

32. Lastly on the question of penalty on various persons I find that it is not disputed fact that the original Master bill of lading was in the name of M/s Codognotto Logistics India Pvt. Ltd., as consignee and M/s Sun Star Industrial Limited as Shipper but as per the freight forwarder M/s Codognotto Logistics India Pvt. Ltd., the containers were booked in the name of consignee M/s Ashtvinayak International as evident from HBL No. WHT1612256A and WHT1612256B both dated 30.12.2016. I also find it as an established fact that both the brothers Anil and Praveen Batra were arrested by the Customs SIIB in similar case and it is also evident beyond doubts that Shri Anil Kumar Batra has fraudulently obtained KYC documents of another importer M/s Global World Traders owned by Shri Vinod Kumar who filed police complaint against them. Using these fraudulently obtained KYC Shri Anil Batra got the consignee name changed from M/s Ashtvinayak International to M/s Global World Traders which is evidenced by two HBL dated 15.01.2017. I find it is a fact that that for amendment of HBL Shri Anil Batra contacted Shri Sarvesh Sharma for such amendment who without any verification carried out such changes forwarded the same to the shipping line for carrying out such changes. So I find that there was intent, for such forgery, to conceal that the imports are made by M/s Ashtvinayak International to escape detection by the customs or DRI so that they can fraudulently clear the goods. I find that Shri Rajeev Ranjan Singh field executive of the freight forwarder in his statement dated 22.04.2017 disclosed that the containers were originally booked by Shri Anil Batra proprietor of M/s M/s Ashtvinayak International. So role of Shri Anil Batra in import of said 5 containers is well evident and it is also evident that he procured KYC of M/s Global World Traders fraudulently and by such fake documents he got the HBL issued in the name of M/s Global World Traders. This is admitted by Shri Anil Batra in his confessional statement dated 01.06.2017 as mentioned in para 11.2 of the notice.

So I find that Shri Anil Batra has not only imported prohibited and other goods liable for confiscation but at the same time used and caused to be made HBL which were falsely carrying on them wrong information in act dealing with Customs. For such act I find that Shri Anil Batra is liable for penalty under section 112(a) and 114AA of the Customs Act 1962. Since the proprietor of a firm does not have separate identity than the firm and it is well settled that simultaneous penalty on the proprietor and firm cannot be imposed so I also hold the same view. This shows that the actual importer in the case was M/s Ashtvinayak International and in which Shri Anil Batra has active role and such prohibited imports were made with active connivance of freight forwarder as it is evident from statement of Shri Sarvesh Sharma dated 24.04.2017 "that Sh. Anil Batra also submitted KYC documents for M/s. Global World Traders (IEC No.0514062037) and stated that this is also his company and Sh. Vinod Kumar is his relative. Then as per Anil Batra's request he managed to get the consignee name changed at his company's agent's end in China since IGM was not filed till then. On demand Sh. Sarvesh Sharma could not produce the KYC of M/s Ashtvinayak International. On being asked as to why the mandatory documents were not taken when the consignment was booked in the name of M/s. Ashtvinayak International, he stated that since they had already worked for Sh. Anil Batra and there was enough time to hand over the delivery Order (D.O.) and that in 6 C/52111-52112/2022 a very short span of time the consignee name was changed from M/s. Ashtvinayak International to M/s. Global World Traders, they did not take any document related to M/s. Ashtvinayak International. He further stated that they had received Rs. 3 lakhs in cash as freight payment in mid- February 2017 from an elderly person whom he believed to be Sh Anil Batra's father at his residence at Rohini and Rs 5,61,000/- was still outstanding".

From the above statement it is clear that neither Shri Sarvesh Sharma nor the freight forwarder asked for KYC of M/s. Ashtvinayak International nor asked much about M/s Global World Traders which create doubt on their submissions. Further as per above statement he stated that they have collected 3 lakhs as freight and Rs. 5,61,000/- is still outstanding which shows that the freight was collected by the freight forwarder in cash in India but on perusal of the HBL amended by the freight forwarder it is evident that the said HBL are issued with freight prepaid. These two are opposite. Since it is admitted by Shri Sarvesh Sharma that they have collected Rs. 3,00,000/ already as freight so this proves that the terms freight prepaid on the HBL are wrong and manipulated and it shall be freight collect rather than freight prepaid. This also proves that the said HBL are manipulated and forged document and the same is prepared by the freight forwarder in which Shri Sarvesh Sharma played important role that too in connivance of Shri Anil Batra. So the submission made by him that he was not aware of the contents of the container is apparently mis-statement when it is clearly evident that they are involved in forgery of HBLs. It is Shri Sarvesh Sharma who asked the freight forwarder wheeltopn to change the HBL and that too only consignee name. These episodes show that they were aware of all the misdeeds of Shri Anil Batra and they knowingly done all these above act. So due to above reasons I find that the freight forwarder is equally responsible for not only mentioning of A4 paper reams in the IGM but which lead to confiscation of goods under various section but also involved in forgery in bill of lading in submission to the Customs. Accordingly, I hold that the freight forwarder M/s and Shri Sarvesh Shrama in his personal capacity are liable for penalty under section 112 and 114AA of the Customs Act, 1962. On the issue of penalty of Shri Praveen Kumar Batra under section 112 and 114AA of the act I find that in this whole illegal import Shri Parveen Kumar Batra is the main conspirater and he helped him in daily work and Shri Praveen Batra was undeclared equal partner in the firm and this has been submitted by Shri Anil Kumar Batra in his statement dated 01.06.2017. The relevant portion of the statement is as under: -