TMI Blog2015 (9) TMI 1016X X X X Extracts X X X X X X X X Extracts X X X X ..... two appellants having been intimately connected with red sander export had conscious knowledge of port of discharge – Therefore imposition of penalty on both is justified – Decided against Appellants. Appeal No. C/191/2007 Mis-declaration of port of discharge – Smuggling of red sander – Held that:- Appellant was actively involved in mis-declaration of port of discharge – In course of smuggling, whisper about modus operandi comes up – As member of racket this appellant had not isolated him – He was contributory to smuggling concealing material fact till discovery by investigation – Plea that appellant had given his evidence under section 108 under duress failed to lend any credence for reason that after seven months of recording of confessional statement, attempt was made to create fiction of duress – No doubt about knowledge of appellant as to actual port of discharge – Accordingly, adjudication against this appellant does not call for any interference – Imposition of penalty hereby confirmed – Appeal dismissed – Decided against Appellant. Appeal No. C/227 & 228/2007 Mis-declaration of port of discharge – Smuggling of red sander – Held that:- Law is very clear as to role of v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... destination shipping bill was made to show the port of discharge as Colombo. This resulted in mis-declaration of description of the destination for which they were penalized by an amount of ₹ 10,000/- each under section 117 of the Customs Act, 1962. 3.1 So far as M/s. Caravel Shipping Services Pvt. Ltd. is concerned, it was brought to the fold of the adjudication by customs authorities noticing that M/s. Ascending Impex, the exporter was only a bubble and non-existent and shipping bill No. 2065190 dated 17.5.2005 was filed for that concern. Similarly, M/s. Chakiat Shipping Services Pvt. Ltd. came into fold when the customs found that the said appellant was also party to the misdeclaration of port of discharge. Learned adjudicating authority has recorded role of M/.s Caravel Shipping Services Pvt. Ltd. in para 5 of his order. According to investigation one Shri V.S. Krishnan, freight forwarder as partner of M/s. Premier Shipping Agency and appellant in appeal No. C/191/2007 in this batch of appeal was in contact with M/s. Caravel Shipping Services Pvt. Ltd. for dispatch of red sander from India to Malaysia. One Shri Kumar who was an abettor to the red sander smuggling alon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Manager, Operations, M/s. Bengal Tiger Line (India) Pvt. Ltd. Chennai in respect of shipping bill No. 2058991 dated 6.5.2005 (Ref: para 29 of adjudication order). Similar such corroboration came out when Shri H. Gokulkrishnan, Assistant Manager (Operations) of M/s. NYK Line (India) was examined on 27.5.2005 under section 108 of Customs Act, 1962 (Ref. para 28 of adjudication order). 7. With the aforesaid background, penalty of ₹ 10,000/- was imposed on both the appellants under section 117 of the Customs Act, 1962. 8. Shri Derrick representing both the appellants submitted that both of the appellants are innocent and they have no knowledge about the port of discharge. They only arranged shipping of the goods without any involvement in mis-declaration as to the port of discharge. Therefore, section 117 of the Customs Act does not apply when they had no conscious knowledge of the goods exported as well as the port of discharge. Accordingly, they should not be penalized. 9. Revenue on the other hand supports the case of customs. 10. Heard both sides and perused the record and examined the submissions. 11. It is an admitted case of mis-declaration of port of discha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms Act,1 962 on 24.5.2005 and 26.5.2005. He stated to have acted on the basis of the liner M/s. Box Trans Shipping Agencies Pvt. Ltd. who required the container to be booked for port Kelang. He also stated to have received a letter from Ascending Impex requesting for switch Bill of Lading and showing the address of consignee as M/s. R A Enterprises, Colombo. Accordingly, Bill of Lading was issued for that port. Request was made to the counterpart of Colombo to issue Bill of Lading to Port Kelang. His statement also reveals that the containers were loaded into vessels bound for Malaysia. That vessels did not go to Port in Colombo nor any transshipment was made to Colombo and the shipper asked for switch bill of lading. No amendment was intimated to customs about the port of discharge. 16. The smuggling racket of red sanders had a team. Smuggling does not occur single handedly. It is an organized bid and concerted effort of those who are actively involved in such venture to make the mission successful. This appellant was one of them. Export was attempted to be made through live shipping bill by non-existence firm Ascending Impex. Even in past such act was done. Racketeers submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. The EGM No. 6801 was based on the details given by the liner agents. 19. Similarly, two consignments of red sanders covered by shipping bill No. 2058991 dated 6.5.2005 and 2052145 dated 27.4.2005 were also consigned by M/s. Carvel Shipping Services and M/s. Box Trans Shipping Agencies Pvt. Ltd. had placed order for containers. Both the containers were shipped to the port of discharge in Kelang in Malaysia. The EGM 6873 was based on the details given by the liner agents but that was untruthful. 20. With the aforesaid background, customs found that the vessel operator acted in defiance of law and there was lapse by them for which they were brought to the purview of adjudication. Their defence was called for by show cause notice dated 15.11.2005 The defence led by the appellant did not convince the adjudicating authority for which these two appellants were imposed penalty of ₹ 10,000/- each under section 117 of the Customs Act, 1962. 21. Learned counsel Dr. Sunita Sundar appearing on behalf of both the appellants submitted that the vessel operators had no scope to know about the act of the shippers and liner agents. They were innocent as a mere carrier of the goods w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aded in the vessel MV Sagar VOY 011 and the container No. TRIU 374306 and FSCU 3874077. When these two appellants were exposed to the statements of above two persons who admitted the breach of law in para 29 30 of the adjudication order, they did not deny about the shipment of the goods in the respective container meant for delivery in Port Kelang, Malaysia although port of discharge was declared in shipping bills as Colombo. They also did not rule out filing of the EGM with the description of the contents in the shipping bills. This clearly shows that the principles of cavet amptor makes the vessel operator liable for their conscious knowledge about the goods shipper, description and nature thereof, consignor and the consignee, as well as contents of the shipping bill misdeclaring port of discharge. Col. 6 of Form 66 which is EGM describes, shipping bill number. Therefore, the vessel operators had good knowledge about the shipping bill descriptions and port of discharge when they mentioned the shipping bill number in the EGM concerned. 27. The shipping bill described the port of discharge as Colombo. But the goods were loaded into vessel bound to Malaysia. That does not rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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