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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 ..... 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 delivery to various persons in Delhi8, were placed under seizure. The seized goods were video cameras, still cameras, video batteries, CD players, car Stereos, lithium cells, video head cleaners, cord less phones, calculators, scotch whiskey, and articles of apparel. After inquiry with Shri Jai Prakash, Delivery Manager of the Appellant company at Delhi, Shri G. Kannan, the Manager of the Appellant company at Chennai, other employees of the Appellant company at Delhi, and Shri Tejinder Jeet Singh, Director of the Appellant company and also inquiry with various consignors and the available consignees a show cause notice dated 2-6-2006 was issued for - (a) confiscation of the seized goods collectively valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 import is prohibited or any item covered by Section 123 of the Customs Act, 1962. There fore, even if the Appellant company's booking clerk had opened the parcel, it would not be possible for them to ascertain as to whether the goods are illicitly imported, as all such goods are imported through legal channels only. Some of the seized cameras are 10 years old. (3) The address of consignee and consignor was mentioned in the GRs/bilties on the basis of the details in this regard given by the consignor. It is not possible for the Appellant company to verify the address before accepting the consignments. (4) There is absolutely no evidence of involvement of either Shri Tejinder J. Singh or the employees of the Appellant c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd 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 goods. (2) Complete address had been recorded in respect of the parecels from which the goods allegedly liable for confiscation under Section 111 of the Customs Act, 1962 had been recovered. (3) When the goods in packages had been booked without opening the packages on 'said to contain' basis and there is no evidence that the appellant company or its Director or employees had knowledge about contents being liable for confiscation under Section 111 of the Customs Act, penalty under Section 112 (b) cannot be imposed on the Appellants. In this regard reliance is placed on the following judgments:- (a) CCE, Chennai v. Manju Chemicals, reported in 2003 (159) E.L.T. 264 (Tri.); (b) C.C. (Prey.), West Bengal v. Precious Carryin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge 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 admission of knowledge about smuggled nature of the goods booked by them. The goods were brought to the Appellants packed in packages/parcels which were booked without being opened for examination on 'Said to contain' basis. The adjudicating authority has imposed penalty on the Appellants on the ground that the GRs in respect of the goods which have been ordered to be confiscated, do not mention the consignee's address, as a result of which, the consignees not being traceable at their address, the investigating agency cannot trace the owner and the smuggling channel is effectively protected. In my view, the ground for penalizing the appellant is not correct as just from omission on the part of the booking clerk in writing complete addres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resh 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 transporter with the owners of the goods while in this case, the parcels were being booked for carriage without opening the same on "Said to Contain" basis. In any case, a transporter in a border area prone to smuggling, accepting huge quantity of imported electronic goods without any documents and without insisting on any proof of identity from the consignors and where the consignors or consignees have not made any complain about non-delivery cannot be compared with this case, where the Appellant, a common carrier, operating parcels service by rail book a large number of parcels daily from different persons. In the case of A.N. Shukla v. Commissioner of Customs, Lucknow (supra) the entire truck load of foreign origin goods had been booked ..... X X X X Extracts X X X X X X X X Extracts X X X X
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