TMI Blog2011 (2) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellant acted as a shipping agent for certain exports to Russia in respect of which certain types of fraud were detected by the department. One element of the fraud was that the Appellant did not truthfully indicate the dates of the Bills of Lading issued for the impugned exports and in the process helped the exporters to claim drawback fraudulently. The advocate appearing for the Appellant is not very conversant with the detailed facts of the case but he submits that as a shipping agent they have violated no law which could lead to penalty under the Customs Act. According to him the date of any Bill of Lading should be hardly of any concern to the Customs Department. His main argument is that neither the Show Cause Notice nor the adjudication order states the provision of the Customs Act contravened by them. On the other hand the Departmental Representative argues that this is a case wherein the exporters defrauded the government of valuable foreign exchange and also got fraudulent draw back to the tune of about Rs. 20.6 crores and the appellant facilitated such fraud. He argues that no leniency should be shown to the Appellants. 3. We have gone through the adjudication orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der sub-section (2), specify the procedure for the recovery or adjustment of the amount of such drawback. The necessary procedure in this regard is laid down in Rule 16A of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995. The export proceeds were not realised as required under the Foreign Exchange Management Act, 1999 (42 of 1999), in as much as the goods were exported to countries other than Russia but export proceeds were settled in the manner as applicable to exports to Russia. The case made out against the shipping agents is that they helped the firms of Shri Rajeev Verma, in showing realization of export proceeds in a fraudulent manner by their act of falsely indicting the dates of Bill of Lading. Since goods were exported with false declaration regarding consignee, country of export etc and since the exports were contrary to prohibitions laid down in Section 11 of the Foreign Trade (Development And Regulation) Act, 1992 in the matter of realization of foreign exchange and also under false claim for drawback the goods were held to be liable to confiscation under Section 113(d) and 113(i) of the Customs Act. Consequently penalty under Section 114 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the Shipping Agents took possession of the goods, such dates would have been prior to the dates of Letters of Credit and therefore the banks would not have negotiated the Bills of lading and made payments from Repayment of State Credit Scheme . It is in this manner that the shipping agent helped the exporter in claiming fraudulent drawback. 10. Against the brief sketch of the fraudulent scheme as above the arguments raised by the appellant can be examined and findings given. 11. The main fact noticed is that the Appellant did not contest the issue regarding differences in dates before the adjudicating authority. Para 11 on page 60 of the SCN states that in some cases the delay from the date of receipt of the goods by shipping agents to the date of the Bill of Lading was as much as three to four months. This fact is not seen challenged in the adjudication proceedings. It is not contested in the present Appeal Memorandum either. Their only contention is that the Bills of Lading were issued only when the shipper asked them for the Bills of Lading and they issued the Bill of lading showing the dates on which Bills of Lading were so issued. They argue that they, unlike the ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his article is relevant here. It says that a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods . A receipt has to indicate the date of receipt. Without that a document which gives the title to the goods covered by the Bill of Lading becomes meaningless. In this case the Bills of Lading were issued after the delivery of the goods abroad, out of the custody of the shipping line. So the act is prima facie fraudulent. We are notable to agree with the argument canvassed. 13. Another ground raised is that the SCN was issued without supplying any relied upon documents and hence the adjudication order is passed in violation of principles of natural justice. This is basically a question of fact and it is to be verified whether this contention was raised before the adjudicating authority. The reply given by the appellant before the adjudicating authority is not submitted along with appeal papers and hence this contention can be verified only with reference to what is recorded in the Order-in-Original. It is seen from para 150 of the order, summarizing the submissions made by the appellant before the adjudicating authority that no such ground was argue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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