CALCUTTA AHMEDABAD CARRIERS Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) The appellants in this case are the transporters. This appeal is directed against the imposition of penalty of Rs. 1 lakh by the Commissioner of Customs (Gen.). The ld. Commissioner had in his impugned order observed that, the appellant (transporter) had wilfully acquired possession and were knowingly concerned in carrying, removing, harbouring, keeping and transporting the seized goods for which they knew and had reason to believe were liable to confiscation under Section 111 of the Customs Act and, therefore, liable for penalty under Section 112.

(2.) The facts of this case are not in dispute. The officers of Customs (Preventive) Branch of New Custom House, New Delhi detained one consignment which had arrived from Jetpur (Surat) at the premises of M/s. Calcutta Ahmedabad Carrier, 19/92, Bhaskar Bhavan, Old Rohtak Road, Sarai Rohilla, New Delhi on 5 -11 -2001. The said consignment contained 86 pkgs. of Mink Fabrics, made in Korea, which arrived at the premises of M/s. Calcutta Ahmedabad Carrier, by Truck on 1 -1 -2001. The consignment consisting of 132 pkgs. was consigned by one M/s. Yamunaji Pross., Surat, vide GR No. 102014928 dated 27 -10 -2001 through M/s. Calcutta Ahmedabad Carrier, Kanakia, near Union Bank, Jetpur, Surat. On the GR, the description of goods was mentioned as "cloth" and the name of the consignee was mentioned as "SELF". M/s Calcutta Ahmedabad Carrier, Delhi had already delivered 46 pkgs. to the consignee, before the visit of the Preventive Officers, and the remaining 86 pkgs. were detained for further investigation. Since no one came forwarded to claim the remaining 86 pkgs. covered under the GR No. 102014928, till 19 -11 -2001 the said packages were got opened on 19 -11 -2001, for the purposes of their examination and further investigation. The said pkgs. were opened in the presence of two independent witnesses and Shri Sanjay Sharma, Area Manager of M/s Calcutta Ahmedabad Carrier. As a result of the examination of the said 86 packages 21343 yards of Mink Fabric, of Korean origin valued at Rs. 21,34,300/ - was found. On the basis of an enquiry conducted, and after recording statements etc., confiscation of 21343 yards of Mink Fabric of foreign origin valued at Rs. 21,34,300/ - was ordered under Section lll(d) read with Section 11 of the Customs Act, besides imposition of penalty on the appellants. The appellants are aggrieved against the imposition of penalty, and they have not challenged the confiscation of the goods. 2. The appellant's submission in brief is that, they being a public carrier, it was not possible for them to know the contraband nature of the goods, which have been booked by an unknown party. If they had such prior knowledge, they could have disposed off the entire consignment on 1 -11 -2001 itself, instead of delivering only 46 bales to the person who took delivery on presenting the original Goods Receipt (GR). The freight charge for transportation from Surat to Delhi were also normal. If they had such prior knowledge of contraband nature of the goods considering the risk involved they would have charged higher transport charges from the Customers. There is no finding in the impugned order to show that the transporters were aware of the contents. The only ground for holding them liable for penalty is that the consignment was booked by the carrier on "SELF" basis, the consignor was a fictitious party and it is stated that, the appellants failed to identify the consignor or the consignee of the said goods. The delivery was given to the person whom they allegedly did not know, despite the fact that, there had been neither any duty paying document or any other document showing lawful imports of the goods of foreign origin or lawful dispatch from a supplier.

(3.) I am unable to support the finding arrived at by the ld. Commissioner. The carrier has to proceed on the basis of a declaration. It is true that the carrier ought to have obtained duty paying document or invoice or import document whichever was appropriate in this case. This only indicates suspicious behavior on the part of the carriers. Nevertheless, penalty cannot be imposed merely on suspicion. It is well settled principle of law that "suspicion" howsoever grave cannot take place of evidence. There is no evidence that the transporter had prior knowledge that the goods were imported fabrics or the same were liable to confiscation. If that had been the case, he would not have taken the risk of storing the remaining 86 packages for 4 more days, when on 1 -11 -2001 itself, 46 packages were delivered to an unknown consignee. The penalty imposed, therefore, is based on presumption rather than on evidence, hence liable to be set aside.