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TMI Blog1991 (12) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... hes in separate parcels from Hongkong by booking the same with the Hongkong Post Office Hongkong to Kabul Afghanistan vide post parcels. The goods were consigned to the applicants in Kabul. (iv) The goods while in transit and in custody of the postal authorities of India, during movement in India, came to the Foreign Post Office in Netaji Nagar, New Delhi for onward movement to Kabul. (v) The said parcels were confiscated by the Customs at New Delhi over a period of time alleging that they had reasons to believe that the said parcels were being smuggled in India in spite of the fact that they were in the custody of the postal Department of Government of India and delivery could not be given to any one in India, what to talk of the foreigners not resident in India. (vi) No details were given to the applicants about the confiscation. (vii) On enquiry from the manufacturers (who enquired from the Hongkong Post Office) they came to know of detention of goods in India by the Indian Customs. After exchange of correspondence and taking up with the Ministry and personal follow up the Customs issued the show cause notice to the applicants except applicant No. 6 Abdul Rahim. (viii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the post parcels were all the time under the custody of the Postal Authorities in India and could not have been delivered in India without Customs clearance. Even as per saving clause 11 of the Import Order, no licence is required for the goods in transit through India by Post as the goods in this case were all along under the Postal Custody. Hence there was no reason to believe or even presume that the goods were intended for smuggling or were being smuggled and the Collector s findings are baseless. (xvi) The Collector has not considered the plea of the applicant that neither the consignor nor the consignee had requested for sending the goods to or through India and not taken delivery in India. 3. In view of the above facts and circumstances he would pray that the order may be set aside and consequential relief may be ordered. 4. The learned DR drew attention to the case of the department as narrated in the order-in-original and in particular to the operative portion of the Collector s order. 5. He emphasised that the case was made out on the basis of information and all these 106 air post parcels were intercepted. All these were booked in Hongkong and addressed to se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled beyond the limit of Customs area and they were found at a place called Netaji Nagar. Further as many as 6358 pieces of watches were intercepted in a few days and this automatically raises a very important question whether such a market exists in Kabul which can accommodate such a huge supply for its genuine disposal in Kabul. Accordingly a presumption has been rightly raised that the goods were meant for smuggling in India. Further the addressees of these parcels were individuals and all of them were addressed to a common P.O. Box. 12. Further no evidence has been brought forth to justify that these are genuine parcels procured and despatched in the normal trade channels. In the above circumstances the order of the Collector was justified. 13. We have considered the submissions of both the sides. We find that the show cause notices refer to Section 11 of the Customs Act, 1962 read with subsection (1) and (2) of Section 3 of the Import and Export Control Act, 1947 read with Clause 3(1) of the Import Control Order, 1955 read with the entry Serial No. 121 of Part-B in Appendix 2 of the Import Policy for April-March 1955, and also Notification No. 78-Cus., dated 2-4-1938 as am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reads as follows :- I am enclosing a letter received from the Commercial Attache, Embassy of the Democratic Republic of Afghanistan, New Delhi as the action lies with your Deptt.Since April 22,1987 approximately 100 parcels are lying detained in this office without any decision. As per (lie international Agreement for parcel post, India is providing transit facility to Hongkong for its traffic to Afghanistan. These parcels are received by our Foreign Post Office in Calcutta and brought to Delhi from where they take flight to Kabul. In case it is in contradiction with any of the Customs provisions, the matter may be taken up with the Postal Board and necessary notifications may be issued". This letter shows that the parcels are received by the Foreign Post Office in Calcutta are brought to Delhi in the normal course in view of the International Agreement for transit facility for such parcels from Hongkong to Afghanistan. Therefore there was nothing unusual or extraordinary if the goods in question were found in transit. 18. We also note that nowhere it is alleged or found that the goods were at any time out of postal control. They were detained at Air sorting office, Netaji ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d it evidently deals with transit of goods other than by post as Section 52 indicates clearly that Chapter not to apply to package, postal articles and stores . Hence this Chapter is not applicable and consequentially Section 111(n) is also not attracted. 22. It is also note worthy that although Section 112 was invoked no penalty has been imposed by the learned Collector on any of the appellants and all the consignments have been allowed to be re-exported (on payment of fine only). 23. In the case of appellant Shri. Abdul Rahim his additional contention was that he was not served with show cause notice or granted an opportunity of being heard and this has not been contradicted and the department has not produced any proof of service of the show cause notice or notice of hearing. In case of other appellants also it lis apparent from the reply to show cause notice filed by the appellants read with Collector s order that all their submissions have not been duly taken into account. 24. From the above discussion it is apparent that the department s case is entirely misconceived. Neither the correct or relevant provisions have been invoked nor the benefit of the applicable provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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