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TMI Blog2024 (9) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the cargo were ultimately delivered to Moscow via Dubai and Bandarabbas and the shipping agent, to evade Income Tax to the Government of India, furnished documents showing disposal of the cargo at Dubai The exporter failed to furnish any documentary evidence to show that the buyer in Moscow received the cargo. However, in spite of non-delivery of the goods the sale proceeds were drawn against the letter of credit from Rupee Credit fund. There appears to be no action by the buyer in Moscow against the exporter or the shipping agent. The dispute between the exporter and shipping agent arose after initiation of enquiry by the Department. The detailed facts mentioned above shows role of the appellant in shipping the consignment to a destination different than mentioned in the Bills of Lading and other documents. It was in connivance of the exporter and the appellant not only actively participated in the contravention but abetted it and, therefore, we find no reason to cause interference in the impugned order. Accordingly, appeal would fail and is dismissed. - JUSTICE MUNISHWAR NATH BHANDARI : CHAIRMAN And SHRI BALESH KUMAR : MEMBER For the Appellant : Mr. Naveen Malhotra, Mr. Rit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Act of 1973. 4. The allegation of abetment could not have been made against the shipping company when they simply acted on the instructions of the exporter yet heavy penalty of Rs.8 lakhs has been imposed. The prayer was accordingly made to cause interference in the impugned order. To support the arguments, the learned counsel for the appellant made reference of the judgment of the Delhi High Court in the case of R.M. Malhotra Vs. Enforcement Directorate and Ors. dated 04.02.2008 where the judgment of the Apex Court in the case of Ramesh Kumar Vs. State of Chhattisgarh reported in 2001 (9) SCC 618 and the judgment of State of Haryana Vs. Jaswinder Singh reported in 2003 (109) Cr. Law Journal Page 10 were referred. 5. The appeal was contested by the respondent. It is submitted that the contraventions of the provisions of the Act of 1973 by the appellant were found proved by the Deputy Director who has passed the elaborate order after considering each aspect of the matter. 6. Four containers of Indian Black Tea were shipped to Moscow but the importer along with the shipping company designed it to ship the containers of Indian Black Tea to Dubai instead of Moscow. The active ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, the facts are not so simple as stated by the counsel for the appellant. 10. The argument of the appellant was not accepted by the Deputy Director taking note of the Bills of Lading issued by them containing details inter alia regarding consignor, consignee/notify party, port of destination, number and type and seal number of the container, contract number, letter of credit number, etc. The appellant submitted copies of original Bills of Lading which is M/s Indem General Trading LLC, Dubai and M/s G.S. International, Dubai at the time of taking delivery of the consignment. Those Bills of Lading were First Originals containing seal of M/s Greenways Cochin clearly mentioning therein freight payable at Destination, Stamps of M/s Indian General Trading LLC, Dubai and M/s G.S. International, Dubai are borne on the reverse of the Bills of Lading, which contains all the details like container number, quantity and particulars of commodity name of the vessel, contract number and date, letter of credit number, name of the Russian buyer, etc. Since the shipping agent issued the Bills of Lading with all the required details, the plea that appellant was not aware of the scheme of exports, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 98 and UGMU 103800001576 dated 9 7.98 respectively. The exporter said to have given instruction for diversion of cargo to Dubai vide letter dated 16.7.98. The containers were loaded on vessel MV LamphanNavee (LN 18). The ship sailed on 16.7.98 from cochin and on the same day it was to be diverted to Dubai without any change in Bill of Lading. The shipping agent filed the income tax return on 14.8.98 declaring the collectible freight amount at destination Dubai as US$ 1050/- per container The cargo was discharged at Dubai on 18.8.98 (Ex vessel Uni Ahead). The Income Tax Return was filed before discharge of ship. On chronological examination of the details, we find that M/s Greenways became part of modus of diversion of cargo to Dubai instead of Moscow (though the Bills of Lading showed destination as Moscow) and lesser amount of freight collection only for Cochin to Dubai. A careful analysis of the available records reveals that the containers in fact were shipped from Cochin to Dubai. The containers were lying in Colombo when the shipping agents received instructions from M/s. Century International for diversion of the containers to Dubai immediate to sailing of ship. 14. This fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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