GREEN EXPRESS TRANSPORT SERVICE, Vs. C.C. (PREVENTIVE)

JUDGEMENT

(1.) M /s. Green Express Transport Service (hereinafter referred to as 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 delivery to various persons in Delhi 8, were placed under seizure. The seized goods were video cameras, still cameras, video batteries, CD players, car Stereos, lithium cells, video head cleaners, cordless 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 -

(2.) HEARD both sides.

(3.) AS per the provisions of Section 112(b) ibid, "any person who acquires 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 G. 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 address of the consignor on the GRs, when complete address of the consignee had been written, it cannot be concluded that the Appellants had knowledge about the smuggled nature of the contents of the parcels (sic) so when the goods like video camera, still camera, Gillet razor, Lithium cells, CD players, Cordless phones, readymade garments are imported through legal channels also and are not the goods whose import is absolutely prohibited and even if the contents of the parcel of these goods had been verified by opening the same, it would have been difficult for the Appellants to ascertain as to whether the same have been legally imported. Moreover, Tribunal in the case of Rajdoot Road Carriers v. C.C. Lucknow (supra) has held that a carrier of goods is not required to check and verify the contents of packages to ensure that the same are not of smuggled nature. Same view has been taken by the Tribunal in the case of Harbans Singh Narula v. Commissioner of Customs reported in : 1998 (100) ELT 282 wherein the Tribunal held that "a person running a transport company could not be expected to know or be aware of the contents of each of the hundreds of packages which must have passed through their office when there is no specific evidence to show that the transporter knew or had reason to believe that packages, in question, contained contraband and that there is no legal requirement for names and addresses of consignees and consignors to be mentioned, as insistence of this requirement would, in practice means refusing to accept a large number of packages for carriage". Therefore, just from the omission to mention full address of the consignor 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. C.C., New Delhi (supra) and C.C. (Pre), West Bengal v. Precision carrying Corporation 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.