Fraudulent amendment of shipping bills requires adherence to statutory evidential procedures; failure renders penalties invalid.

JUSTICE DILIP GUPTA:

BEN, the appellant through its partner Praveen Rao has sought the quashing of the order dated 11.02.2022 passed by the Commissioner of Customs (Appeals), the Commissioner (Appeals) by which the appeal filed by the appellant for setting aside the order dated 23.01.2019 passed by the Additional Commissioner of Customs in so far as it confiscates the goods exported through 62 Shipping Bills and imposes penalties upon the appellant and its partner Praveen Rao, has been dismissed.

2. It transpires from the records that the appellant had filed 62 Shipping Bills for export of readymade garments for export to Armenia/Bulgaria under the Focus Market Scheme. Investigation were initiated against the appellant on the premise that the appellant had diverted the consignments intended for export to Armenia/Bulgaria after the Let Export Orders were issued to Jebel, UAE, which was not a country notified under the Focus Market Scheme.

3. Subsequently, a show cause notice dated 08.11.2017 was issued to the appellant.

4. This show cause notice was adjudicated by the Additional Commissioner of Customs by order dated 23.01.2019. The first issue that was framed for adjudication is:

(i) Whether M/s BEN, Rewari (Haryana) (Noticee No. 1) had fraudulently diverted their export consignments covered under 62 Shipping Bills (as detailed in Annexure-A to the show cause notice) originally destined for export to Armenia and Bulgaria, the countries notified under Focus Market Scheme (FMS)/Merchandise Export from India Scheme (MEIS), to the changed "Country of Destination" i.e. Jebel Ali (United Arab Emirates), which was not a notified country under Focus Market Scheme/Merchandise Export from India Scheme, to avail undue benefit of FMS/SFMS/MLFPS/MEIS?

5. In this connection, the finding recorded by the Additional Commissioner is:

“18. I find that during investigations, the concerned Shipping Lines i.e. M/s Perma Shipping Lines (I) Pvt. Ltd, M/s Freight Connection India Pvt. Ltd and M/s APL India Pvt. Ltd, who had transported the goods of M/s BEN, Rewari (Haryana) (Noticee No. 1) in their containers to Jebel Ali (UAE), had submitted copies of Master Bills of Lading and TR-1/TR-2 copies of Customs-cleared Shipping Bills, and it was found that there were manual amendments in handwriting of some unknown person on the first page of each above said TR-1/TR-2 copies of Shipping Bills with regard to "Port of Discharge" and "Country of Destination"; that originally, Bandar Abbas or Burgas, as the case may be, was mentioned as "Port of Discharge" and Armenia or Bulgaria, as the case may be, was mentioned as "Country of Destination", which were found to be stricken out manually. Further, Jebel Ali against "Port of Discharge" and Dubai against "Country of Destination" were found to be endorsed by some sort of signature and a stamp of Superintendent of Customs, Export Shed, ICD, TKD.”

6. Thereafter, the Additional Commissioner considered the statement of Parender Shazwan, Assistant Manager of M/s Perma shipping line, statement of Munir Ahmad, Manager of M/s Freight Connection India, and Shri Imran Mirza, Proprietor of the freight forwarding agency and concluded that:

“21. I find that the above un-rebutted evidence on record, clearly prove that in all the 62 Shipping Bills pertaining to export of Readymade Garments, the TR- 1/TR-2 copies of the shipping bills had been fraudulently amended with the help of Shri Imran Mirza on the direction of Shri Praveen Rao, Partner of M/s BEN, and the goods were actually exported to Jebel Ali (United Arab Emirates), which is not a notified country under Focus Market Scheme (FMS)/Merchand