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TMI Blog2006 (3) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... to Guahati and it was found to be loaded with some packages containing goods of foreign origin of miscellaneous nature, such as, cordless telephones, rechargeable emergencies lanterns, record players etc. Sri Sukhendu Bikash Bakshi, the representative of the transport company in his statement given on 10th October, 2001 stated that the consignments were booked for different destinations in the North Eastern States and those were booked in accordance with the declaration given by the consignors and on the basis of documents produced by them. He further stated that as a transporter they were not required to verify the contents at the time of booking of the consignments. The transport company, however, disclosed the names and addresses of all the consignors of the consignments. (b) On the above basis, show-cause notices were issued to all the persons concerned proposing confiscation of the goods as also the truck involved, along with the imposition of personal penalties upon the various persons involved. (c) Those show-cause notices were adjudicated by the Commissioner and he had imposed a personal penalty upon the appellant and had also confiscated the foreign made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods and unless they prove specifically that those are smuggled goods, no order of either confiscation or imposition of penalty can be passed. At any rate, Mr. Das continues, the transporter cannot be penalised even if those items were smuggled. 6. Mr. Das next contends that the items confiscated herein being non-notified items in terms of Section 123 of the Act the Tribunal rightly set aside the imposition of penalty and confiscation. In support of such contention Mr Das relies upon the following decisions : 1. Commissioner. of Cus. (Prev.), W.B., Kolkata v. Sudhir Saha reported in 2004 (172) E.L.T. 26 (Cal.); 2. Rajeev Kumar Aggarwal v. CEGAT reported in 1997 (94) E.L.T. 76 (Del.); 3. Santosh Gupta v. Union of India reported in 1990 (48) E.L.T. 210 (Bom.); 4. Shanti Lal Mehta v. Union of India and others reported in 1983 (14) E.L.T. 1715 (Del.); 5. Anil Kumar Pandey v. Commissioner of Customs, Shillong reported in 2006 (116) E.L.T. 642 (Tribunal); 6. Hindustan Bearing Corporation v. Collector of Customs reported in 1990 (50) E.L.T. 91 (Tribunal) 7. J.P. Bearing Co. v. Collector of Customs, Lucknow reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sporting. Merely because the consignor has given a particular description of the items sought to be transported, a transporter is not bound to accept that as correct. As a transporter, it has a primary duty to verify the items so that contraband articles are not passed out through it. The transporter must also be sure that the consignor is disclosing his genuine address and identity and that can be easily verified by either demanding production of voter identity card or other recognised identity cards such as, driving licence, Bank pass-book, ration card etc. and retaining a xerox copy thereof or accepting payment from such consignor for transportation through account payee cheque. It is true that in this case, the confiscated items were non-notified under Section 123 of the Act, but if we accept the contention of the learned advocate for the transoorter that his client had no liability at all to verify the contents, in such a case, even notified items may be illegally transported and in such a case, the transporter would take the selfsame plea that he had no liability in the matter even if the consignor is not traceable. If the alleged consignor declares his consignment as a box c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the aforesaid proposition of law but in a case where the department has stalled proceedings on the bona fide belief that the goods seized are smuggled goods and the declared owners are not coming forward even to put forward a claim of ownership of such goods and most of the declared owners are found to be fictitious persons, such burden is easily discharged once it is found that the goods were of foreign origin. In the case before us, nobody has asserted to be the owner of the goods and at the same time, nobody has also curiously accused the transporter of non-supply of the goods at the proper destination. Therefore, in this case, the onus has been discharged by the Revenue when the so-called owners are afraid of facing the revenue. The said decision is, therefore, of no assistance to Mr. Das. 14. In the case of Rajeev Kumar Aggarwal v. CEGAT (supra), the Delhi High Court was considering a case of seizure of ball bearings from Railway Authorities. On adjudication, the goods were found neither notified in the terms of the Customs Act nor was any evidence adduced by the department to prove that those have been smuggled into India. In such a case, it was held that once the Collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court found that the department did no claim that the receipts were totally bogus and on preponderance of probabilities, it was found that the possessor had discharged the burden, if any, which lay upon her. 18. In the case before us, nobody is taking any responsibility as regards ownership of the goods though there are apparent disclosed owners; therefore, the principle laid down in the case of Santosh Gupta (supra), cannot have any application to the fact of the present case. 19. In the case of Shanti Lal Mehta v. Union of India and others (supra), it was held that the restoration of the goods beyond time limit was illegal and that the burden is upon the Revenue to prove that the confiscated goods were smuggled goods. In that case, the burden was wrongly placed upon the possessor of the goods. In this case, we have already held that nobody has the courage to declare himself to be the owner of the goods and the possessor also feigned ignorance of the contents as well as genuineness of the identity of the consignor and such defence is disbelieved by us. Therefore, the said decision does not help the respondent in any way. 20. In the case of Anil Kumar Pandey v. Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that those are smuggled goods became lighter and in the absence of any counter claim by the owner of the goods, the goods cannot be returned back to the transporter when nobody has even charged the transporter for return of those goods. Such type of a case can be compared with one where after being chased by the Customs-people, the owner has escaped by leaving the goods in the street and in such a situation, the burden of proof upon the Revenue is negligible. 23. In the case of Jupiter Exports v. Commissioner of Customs, Chennai (supra), the question was whether dried garlic containing moisture content was classifiable under ITC sub-heading No. 071290.04. In such a case, it was held that the goods by virtue of classification, covered under Open General Licence (OGL) are not liable to confiscation under 111(d) of Customs Act, 1962 and hence, no redemption fine and penalty was imposable. In our view, in the case before us, the owner of the goods not having come forward raising any plea that it was not part of the smuggled goods, the transporter cannot take the brief of the owner of the goods. We have already found that the transporter could not bring the named consignors and at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of contraband goods are kept at the bottom of the truck and covered by bags of soda ash, and the contraband goods are not concealed in the bags containing soda ash but found in separate packages, soda ash bags cannot be said to have been used for concealing the smuggled goods. In the case before us, it is the definite allegation that Indian goods were placed above the foreign made goods and those were smuggled goods. Be that as it may, we have already pointed out that transporter not having even checked the consignments cannot take the possible pleas available to the owner and in the absence of any defence taken by the owner of the goods, it should be presumed that those were really smuggled goods and Indian goods were used for concealing those foreign smuggled goods. In this case, no body is even coming forward to demand the return of the Indian goods. 26. In the case of Hindustan Wires Ltd. v. Commissioner of Customs (Prev.). Lucknow (supra), there was no nexus established between the owners of the coil in question and the owners of the smuggled goods and owners of the coils were not aware of the use of the goods for covering the smuggled yarn and in such a situation, the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all not be deemed to be limited or affected by any public notice; but any such carrier, not being the owner of a railroad or tramroad constructed under the provisions of Act 22 of 1863 (to provide for taking land for works of public utility to be constructed by private persons or companies, and for regulating the construction and use of works on land so taken) may, by special contract, signed by the owner of such property so delivered as last aforesaid or by some person duly authorised in that behalf by such owner, limit his liability in respect of the same." 29. The plain reading of the aforesaid provision makes it clear that the liability of any common carrier for the loss of or damage to any property delivered to him to be carried should not be deemed to be limited or affected by any public notice but any such carrier not being owner of railroad or tramroad constructed under the provisions of Act 22 of 1863 may by special contract, signed by the owner of such property so delivered as aforesaid or by some persons duly authorised in that behalf by such owner, limit his liability in respect of the same. In the case before us, nobody has lodged claim before the carrier for damages ..... X X X X Extracts X X X X X X X X Extracts X X X X
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