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TMI Blog2010 (1) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant company) had taken a rail wagon on lease from Railways and the same was being operated as Parcel Van between Chennai and Delhi by attaching it to trains between Chennai and Delhi. Shri Tejinder Jeet Singh is the Director of the Appellant company and Shri G. Kannan is the Manager of the Appellant company at Chennai. On 10-12-2005, on information that smuggled goods are being sent to Delhi through the parcels, being booked by the Appellant company at Chennai, the officers of Commissionerate of Customs, Delhi (Preventive), searched the Central Cargo Complex of Lahori Gate Railway Station, Delhi in presence of two pancha witnesses and on examination of the parcels of the Appellant company, foreign origin goods valued at Rs. 13,10,125/- was recovered from parcels covered by bilties No. 45630, 45631, 45632 and 45633 all dated 8-12-2005. On 11-12-2005 and 13-12-200 further searches were conducted and miscellaneous foreign origin goods valued at Rs. 59,39,320/- was recovered from parcels covered by bilties No. 45659, 45661 45662 all dated 9-12-2005. The goods valued at Rs. 13,10,125/- and Rs. 59,39,320/- recovered from the parcels booked by the Appellant company for delive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Railways which was being used for operating a parcel service between Chennai and Delhi by attaching the wagon to the trains between Chennai and Delhi. Besides the transport by rail, the Appellant company also use the trucks and lorries. The Appellant company, operates as a "Commerce Carrier" for point to point carriage of the goods and they book the goods in packed condition on "Said to Contain" basis on proforma of receipt, known as "goods receipt"/"bilty". At the destination, the delivery is given against consignee's copy of the bilty/G.R. The booking of parcel/packages on "Said to Contain" basis is done by the booking clerks and at the destination, the delivery is given by the delivery clerk. The person booking the parcel were individuals or freight forwarder who were booking the parcels in bulk. Since the Appellant company was booking the parcels on "said to contain" basis, it cannot be assumed that the Appellant company as commerce carrier had knowledge about the contents of the parcels. (2) The goods seized are video cameras, still cameras, batteries, Gillete blade, CD. Players, Calculators, Scotch whisky, and articles of apparel. None of them goods are those of which impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not contain any offending goods which are liable for confiscation under Section 111 of Customs Act, 1962, upheld the penalty on the Appellant, a carrier under Section 112(b) ibid. The ratio of this judgment of the Tribunal is squarely applicable for the facts of this case. Same view has been taken by the Tribunal in the case of A.N. Shukla v. CC., Lucknow, reported in 2005 (187) E.L.T. 269 (Tri.-Del.). (3) As per the provisions of the Carriers Act, 1865, a common carrier is required to mention value and complete description of the goods and complete address of the consignors. (4) The goods valued at Ks. 63,94,045/- have been confiscated under Section 111(d) of the Customs Act, 1962 as the consignees did not come forward to claim the ownership and produce evidence of their legal importation. The Appellant being the carrier cannot escape the liability of penalty. 2.3 In rejoinder, Shri Prabhat Kumar, Advocate, made the following (1) The "prohibited commodities" referred to in the Apellant company's lease agreement with the Railways are not the goods imported in contravention of the provisions of Customs Act, 1962 but the items like drugs, explosives, offensive or dangerous g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to attract the penal provisions of Section 112(b) of Customs Act, 1962. 4. As per the provisions of Section 112(b) ibid, "any person who ac quires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or an any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111, shall be liable to penalty as prescribed in clause (i) to (v) of Section 112. From the language of Section 112(b) it is clear that for imposition of penalty under this clause on a person, involved in carrying, removing, keeping, concealing etc. of goods, which have been held to be liable for confiscation under Section 111, the knowledge or reason to believe on the part of the person about the liability of the goods for confiscation is necessary and the burden to prove its existence would be on the Revenue. However, in this case, it is seen that neither Shri Tejinder J. Singh, Director of the Appellant company, nor any of its employees, - Shri Jai Prakash, Shri Dalip Sabherwal, Shri Jaswant Panwar or Shri C. Kannan, have said anything in their statements which can be treated as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsignor in some GRs by the person booking the parcel for carriage, it cannot be concluded that the Appellants had knowledge or has reason to believe about smuggled nature of the contents of .the parcels. Tribunal in the case of Harish Kumar v. CC., New Delhi (supra) and C.C. (Pre), West Bengal v. Precision carrying Corpn. Ltd. (supra) has held that mere probability of the transporter having knowledge about the smuggled nature of the goods being transported is not enough to impose penalty on him and for this purpose, some positive evidence about his involvement is necessary. Such positive evidence about the Appellant's involvement is lacking in this case. 5. Judgment of Hon'ble Calcutta High Court in the case of CC(Pre), West Bengal v. Suresh Kumar Nyollywalla, cited by the learned D.R. is not applicable to the facts of this case as in this case, the Appellant company is a commerce carrier booking the parcels without opening to check their contents on 'Said to Contain' basis and in each Chennai-Delhi trip the wagon may contain a large number of parcels booked by different persons. In the case of C.C. (Pre), West Bengal v. Suresh Kumar Nyoll there was evidence of connivance of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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