A K Banerjee :Is Delhi Customs facilitating Smugglers to roam free by not forwarding the cases to CBI relating to fraud and huge duty evasion?

(This article is the second and concluding part of the one published in the December 2013 issue.)

The present case relates to forgery at ICD Tughlakabad and Air Cargo unit New Delhi by forging procurement certificate of EOU to clear the imported goods at nil rate of duty besides no examination of the goods is being done by the Customs.   The cases of forgery involve I.P.C. violation; still the Customs did not hand over the cases to CBI as is mandatory. Are Investigations carried out by Customs agencies at ICD Tughlakabad and Air Cargo unit biased/selective/incomplete and helping the real smugglers to escape?  
Final show cause notice was issued under C.No. VIII (H) 13/113/200622816  dated 14/9/2012 relating to the case booked at ACU New Delhi.  The Commissioner of Customs I&G New Delhi  intimating  therein  the facts of the case that  , it appears that the said CHA has contravened the provisions of Regulation 13 (a), 13(d),and 13(o) of the CHALR 2004 in as much as they did not obtain the authorization from the importer  Prashant Gupta did not verify the facts and genuineness of the importer before filing the bill of entry, did not advise his client to comply with the provisions of the act, did not verify the antecedents and correctness of other information relating to the importer  and  M/s Prashun Jain as a customs house agent have failed to do so, thereby they have made themselves liable to action for contravention of the said Regulations of CHALR2004.

Why their CHA license no R 91/2006 should not be revoked and part or whole amount of their security deposit should not be forfeited under regulation 20(1) of the CHALR ,2004 in contravention of the provisions of Regulation 13(a)(d)(o) of the CHALR 2004. 
From the above formalities completed by the Customs department a lay man may think that the department has taken appropriate action to solve the case and to punish the guilty. However RTT has gathered that the investigation carried out is absolutely shoddy and has been conducted in such a way so that the real culprit may escape. The documentary evidence if properly scrutinized will also show how the department is bent upon to save the real culprit and to fix a number of innocent people.
 
The two Show cause notices dated 17/11/2011 and 14/09/2012 issued by the Commissioner of Customs I& G New Delhi clearly shows that the consignments were imported and were cleared fraudulently by forging the documents of Rajdhani Crafts Jaipur. The department should get clarification from the two Commissioners as to whether it was in their knowledge that in any case where fraud is committed invokes the IPC violation and the matter needs to be forwarded to CBI for investigation.
 
Show Cause notices mentioned above   has a number of discrepancies which may help the real culprit to escape from the clutches of law. In both the show cause notices it has mentioned that Prasun Jain has admitted in his two statements dated 19/11/2011 a number of irregularities/ fraud committed.
However the fact is that Prasun Jain retracted from his two statements dated 19/11/2011 while he was in prison and intimated to the ACMM Court New Delhi. Further while granting bail a condition was laid down in his bail order that Prasun Jain should join investigation as and when required. See the irony that department has not recorded any statement of Prasun Jain except that the  retracted  two statement dated 19/11/2011.What does this mean i.e. the department has issued show cause notice  and has taken cognizance on the basis of statement dated 19/11/2012 which has already been retracted and has no locus standi. In any Court of law Prasun Jain could not be held guilty on the basis of those statement.CBI should investigate as to why no statement except two statement dated 19/11/.2011 retracted later on was recorded and why the two Commissioners has failed to mention this point in their respective SCN issued.
 Sources say that Prasun Jain is the alleged main conspirator and involved in a systematic fraud besides providing false information in his statement recorded under Customs act has been charged under CHARL only  in the SCN: WHY? Is it a ploy to save him for some other obvious reason or he is being favoured.
 
 RTT also gathered that the then Commissioner of Customs I&G in the SCN dated 17/11/2011 has not provided the complete information in Para 16 wherein it has been mentioned that Omprakash of Nayak Aviation Services Mahipalpur New Delhi  used to handover the DO to Sonu and Omprakash has left Nayak Aviation.  Badan Singh Rautela manager of Nayak Aviation in his statement dated 9/12/2010 stated that D.O.   was handed over to Sonu having mobile no 9811400804 against cash payment .Reference is invited towards Jama talashi memo dated 20/11/2010 wherein a note says that “in response to letter dated 23/11/2010 details of mobile phone 971605690 of Prasun Jain from Aircel, 9999242055 of Biplap Hari  , 9811411804 of Tajinder pal Singh used by Prasun Jain  and 9811633641  of Amir Hasan from Vodafone for perusal .
 Badan Singh Rautela also mentioned phone no 9811411804 of one Sonu and the same phone number  registered in the name of Tajinder Pal Singh used by Prasun Jain as mentioned in Jama Talashi memo.
  No efforts have been made by the Customs investigating agency to correlate whether Sonu and Prasun are the same person or different. What compelled   Commissioner to produce the incomplete statement of Rautela of Nayak Aviation in the SCN dated 17/11/2011?
 
 Most surprisingly the Commissioner of Customs I&G in SCN dated 14/09/2012 has omitted the entire version of statement recorded under Customs act of Badan Singh Rautela reasons best known to the Commissioner. But serious question arises as to whether the same has been done intentionally or  to favour someone.
 
RTT also gathered that one Bill of Entry bearing no 168629 dated 16/11/2010 related to M/S Rajdhani Exports  was cleared on 18/11/2010 when the SIIB of Customs I & G Commissionerate New Delhi intercepted the  another consignment of M/S Rajdhani Exports Jaipur relating to bill of entry no 168385 dt 16/11/2010 fraudulently cleared by Prasun Jain and others..  If the clearance of above mentioned Bill of Entry no 168629 dated 16/11/2010 is true then it means that SIIB failed to gather the correct statement from Prasun Jain regarding the total number of consignments cleared by forging the procurement certificate.  Bill of Entry no 168629 dated 16/11/2010 had been cleared and was given out of charge on 18/11/2010 and the records show that   Rajinder P Kapoor was the CHA in this case. The same can be verified from the annexuture A to the statement dated 2/12/2010 of Sameer Aggarwal partner of Rajdhani Crafts, Jaipur recorded by the Central Excise Jaipur wherein the B/E no 168629 does not exists in list of clearance made by the EOU which means that some other CHA might have cleared that consignment. The Customs must confirm it from M/S Rajdhani Crafts as well as from CHA Rajinder P Kapoor whether B/E mentioned above pertains to Rajdhani crafts and was cleared by CHA Rajinder P Kapur or the Bill of entry in question was also cleared on forged documents. . What happened to the procurement certificate regarding the bill of entry in question as the consignment was cleared at nil rate of duty.
 
RTT has also gathered that forging procurement certificate  may not be limited to the three bills of entry as mentioned in the SCN issued by the Commissioner I&G New Delhi .Since Biplab Kumar is absconding and the Customs department has failed to take any statement of Prashant Gupta it will in the fitness of the things and transparent investigation, record from EDI for the 2008-2010 particularly bills of entry no 982587,110453 and 142999 dated 6/9/2010, 28/9/2010 & 25/10/2010 respectively may be got investigated  after taking a NOC from Rajinder P Kapoor ,  whether the number of B/E shown in the EDI for the year 2008-2010 shown against his name (Rajinder P Kapoor)  has been cleared by him or some other person has misused his CHA name . This action is necessary as Biplab Kumar is absconding and Customs is not in a position to corroborate the statement of Prasun Jain wherein he had taken the name of Biplab Kumar as a conspirator.
 
  RTT has also gathered that one of the aggrieved party has obtained through RTI Act call data record of more than 550 sheets and having 25000 call details .Most surprisingly being a corroborative evidence in both the fraudulent clearance that took place in ACU as well as in ICD Tughlakabad no one either in ACU or in ICD TKD is interested to take cognizance of these call records to substantiate cases booked by them.  Sources say that the data of said Call records is available with ACU since December 2010 and with ICD since 2012. What does this reflect? It is beyond any doubt that the SIIB of ICD and ACU do not want to reach the real culprit.  The role played by  the Commissioner ICD and I&G needs to be  verified. The call detail of 25000 also includes at least a thousand international SMS sources say. It has also been gathered that the mobile calls record are the most potent legal inculpatory evidence against the conspirators has not been made as Relied upon documents..
 
A few mobile phones used by the accused and his associates were not registered in their name but they were found to be actual user as confirmed by them in their statement recorded under Customs act. Now the question arises whether the department has got verified whether the actual persons have given their mobile phone to accused voluntarily or even the mobile connections have been obtained through fake documents.
 
The Customs department will not be able to recover a single rupee in this case due to the sloppy investigation. The higher authorities from the level of Deputy Commissioner to the Commissioner level ought to explain what action they have suggested/taken to solve the case whether at ACU or ICD or the senior officers just approved the action suggested by the juniors.
 
 Load port of all the shipments that have been booked by SIIB is Hong Kong. No enquiry has been effected regarding remittance done in India and abroad  as it will be an evidence of legal value in all the three bill of entry in which smuggling and fraudulent clearance of import  took place.
 
The department has not initiated prosecution case against any of the accused involved in the customs duty evasion and forgery case despite confession made in their statement under sec 108 of the Customs act, corroborative statement from transport owner, seizure of goods, forgery of statutory documents, impersonation, misdeclaration of goods, misusing of CHA license, misusing of IEC code, smuggling, misusing of mobile phones, subletting of own CHA license ect.
 
The department has failed to collect even a single piece of evidence against Biplab Kumar and Prashant Gupta alleged importer.
 
No action is initiated against DC specialized in Group VII who failed to check authenticity of procurement certificate ect as demand notice has to be issued to the EOU for recovery of duty in case rewarehousing certificate is not received within 90 days from the issue of the certificate.
 
To the utter surprise no SCN has been issued regarding the case at ICD Tughlakabad though the Forgery and duty evasion relating to the case happened in 2009.
 
Different yardstick has been adopted by the Commissioner while suspension of CHA license at ICD and ACU.
 
Why no forensic evidence has been collected of hand writing of records in document like procurement certificate invoice with hand writing of Prasun Jain and Praveen Garg in case relating to ICD Tughlakabad.
 
Why the investigation has failed to cover the aspect as to what happened to the goods after these were transported to destination as per the transporter’s statement and to whom the goods were sold and by whom.
 
Why the investigation has not covered the aspect as to who was the foreign exporter and to whom he was linked? Who in the past has shady dealings and past record of serious contraventions with Customs authorities?
 
Who had taken on rent the premises or the warehouse in which the purported containers were landed by the transporters and whether the land lord of that premises is even aware of the identity of the person who has taken the god own on rent the investigation failed to cover up this aspect.
 
Whether due diligence was exercised by the officers who cleared the consignment at each stage and thereafter in getting the re-warehousing certificate with in stipulated time or whether there has been any contributory negligence?
 
Whether the overseas Exporter in the case of ICD Tughlakabad and in the case of ACU New Delhi in which Prasun Jain was arrested is the same person and whether the imported consignments were booked from the same country.
 
                        .
  There is a possibility that in a huge number of cases Customs department even have no knowledge of fraud being committed under their nose. It is also a regular modes-operandi that after fraud is committed original papers goes missing in most of the cases in Customs department and no accountability has been fixed on this account it appears.
 
It is pertinent to mention that the dual standard played by the Customs department is clear from the fact that in a number of cases the Customs have suspended the licenses of the CHA’s when they failed to even take proper authorization for clearance or even when KYC norms were not fully complied, however a few powerful CHA, s have been favored.
 
Since Customs has been  charged Prasun Jain under CHARL ,whether it means Customs has given a clean chit to Prasun Jain of smuggling and forgery of procurement certificate. If so who is the original culprit or Customs had erroneously arrested Prasun Jain earlier. All this questions needs to be answered.
 
Customs department has not learnt any lesson to stop forgery /smuggling  despite RTT publishing article on the subject along with valuable suggestion from time to time .
 
Has the Customs taken cognizance of the two   statement of Prasun Jain . In his first statement he stated that Raja takes the delivery  in Nehru Place, But in second statement he stated that goods were imported by Prashant Gupta of Nehru Place New Delhi.
Though in his statement Prasun Jain stated that he knew Biplab Kumar for the last few months . Whereas RTT gathered that Prasun Jain knew Biplab Kumar through Vinay Kumar proprietor of Exim services who is the authorized CHA of M/S Rajdhani crafts.
 
It may not be an coincidence that Biplab Kumar is missing from the date of incidence and Customs department is unable to catch him. Probably Biplab Kumar is scared  of someone involved in this case.
 
The role played by the Customs officers specially the higher officers relating to the case of procurement of certificate fraudulently in relation to EOU to clear import consignments   and to evade huge Customs duty reflects incompetency, favoritism and loss to government exchequer.
. And what is SIIB doing in the matter -an investigation or an operation cover up under the pressure from senior officers.
 
Readers will be astonished to know, how the Customs department carry out their investigation. In response to a RTI application related to the case , the CPIO attached to the office of Commissioner of Customs I&G New Delhi vide their letter C No VIII.SIIB/CUS/I&G/128/2010 30971 18/12/2013 has intimated that no statement has been recorded under sec 108 Customs Act in respect of Prashant Gupta and Biplab Kumar till date, no enquiry has been made with reference to remittance of   payment to supplier till date, no action is taken against Prikshit and Manoj  ofIndian origin who are the financer in China as per confession of  Prashun Jain, Call data record  of appox 25000 telephone calls have not been made as relied upon documents, no investigation has been done with the legal owner of any of the impugned mobile numbers, final show cause notice is not served to anybody else except Prashun Jain, no fresh statement has been recorded from Prashun Jain after 20/11/2010i.e. date of retraction of his statement, facts of retraction of original statement dt 19/11/2010 has not been incorporated in any of the show cause notice.
 
The reply sent by the CPIO itself speaks about the quality of investigation carried out by the department in this case. The I.O. who initially booked the case was also transferred prematurely.
 
 
 
RTT has  time and again published regarding the continuous/endless fraud committed by the CHA/ Importer/Exporter yet the higher ups in CBEC are sleeping and have never bothered to take any full-fledged technology backed measures to stop these types of fraud, as the human failures are becoming too frequent to be termed as Normal. We are living in a techno era and customs department have an effective  operational system ACES ,   yet no one has thought of issuing digital gate pass with barcode on it so that  such incident can be  read electronically. All the Customs officers need regular training so that they can adopt the new technology and benefit   the department. Rather than wasting money on unnecessary pursuits, Customs should hunt for technologies through its Directorate of Preventive operations which can prevent such frauds.   Customs department is showing their helplessness in enforcing the law and always waits for another scam to happen.
 
Directorate of Vigilance and CBEC ought to look into the matter immediately and after verifying the facts of the case, the case should be hand over to CBI because Customs cannot solve this case as is evident from the investigations carried out for the last five years  and will fix the small CHA’ S or others just to close the cases and the truth will be put under carpet as has been done in many other cases besides allowing the real culprit to roam free and allow him to do more frauds of huge magnitude, thereby to dupe more unsuspecting importers and CHA’S and loss to government exchequer.