Full Judgment
2. The facts of the case briefly stated are that on 10-2-1994, the Officers of Customs (Preventive) intercepted six parcels lying in the office of M/s. State Cargo Services, Delhi. These parcels were stated to have been delivered to one Shri Om Prakash by Shri Mukesh Khandelwal. These parcels were examined and found to contain 247 pcs.
of floppy disc drive bearing marking of 'Sony Made in Malaysia'. The goods were valued at Rs. 4,94,000/-. As neither Shri Rakesh Kumar nor Shri Om Prakash could produce any documentary evidence to show the legal importation of the floppy disc drive, these goods were therefore seized. The statement of Shri Rakesh Kumar and Shri Mukesh Khandelwal among other persons were recorded. Shri Rakesh Kumar in his statement denied any knowledge of the contents of the packages seized. Shri Mukesh Khandelwal in his statement did not implicate Shri Rakesh Kumar about any complicity of sending smuggled goods from Delhi to Mumbai.
The Commissioner while adjudicating the case observed in para 28 that "Mr. Rakesh Kumar Sharma of M/s. State Cargo Services, 49 Parda Bagh, Shantivan Marg, Daryaganj, Delhi has also abetted in transportation of smuggled goods. His plea that he is innocent about the contents of the parcels is not tenable which is evident from the fact that this is contrary to the normal trade practice. In the statement dated 10-2-1994, he has admitted that Shri Mukesh Khandelwal had been giving them business off and on and they had sent his (Mukesh Khandelwal's) parcels to Bombay more than 20 times. He further admitted that Mukesh Khandelwal never used to give his or his shop name in the G.R. It was always using a coded name like Delta, Baba etc. Such consignments were never supported by documents/invoices and declaration about the contents. It does not appear to be normal trade practice.
3. The Commissioner of Customs on the basis of above findings imposed the penalty as indicated above.
4. Shri A.R. Mehta, ld. Advocate submits that S/Shri Rakesh Kumar Sharma and Om Prakash are engaged in the work of Courier Services for sending the goods from Delhi to Mumbai; that the appellant did not know the contents of the packages as there was no requirement of declaration about the contents of the goods; that there was no means available to the appellant to know the contents or to know their smuggled nature; that Shri Mukesh Khandelwal did not implicate Shri Ramesh Kumar Sharma.
Ld. Counsel submits that nothing has been brought on record by the department to support the contention of the Commissioner that was the normal trade practice. He submits that the appellant knew Shri Mukesh Khandelwal, he accepted the packages as they were delivered to him for the purpose of sending them to Bombay. He, therefore, submits that the appellant had no role to play and had no knowledge of the contraband goods and, therefore, imposition of penalty is not warranted and prays that the order imposing penalty may be set aside.
5. Shri S. Srivastava, ld. JDR submits that the adjudicating authority had observed that it was the normal trade practice. He submits that in the Customs it is the custodian of the goods who has to discharge the onus that the goods are not of smuggled character. He submits that the goods were recovered from Shri Rakesh Kumar, therefore, the onus was on him to prove that the goods were legitimately procured. He submits that the order imposing penalty is sustainable in law.
6. Heard the submissions of both sides. We find that Shri Rakesh Kumar in his statement stated that the goods were meant for Shri Mukesh Khandelwal. Shri Mukesh Khandelwal was the person identified he did not implicate Sh. Rakesh Kumar. Shri Rakesh Kumar in his statement also did not confess that he had any knowledge of the contents of parcels. We also note that the adjudicating authority has referred to the normal trade practice. However, nothing has been brought on record either by way of an expert opinion to show that it was the normal trade practice; that the contents of the packages should be declared not even a receipt issued by Courier has been brought on record that there was a column in the receipt to declare the contents of the packages. Ld. Counsel also brought to our notice the decision of this Tribunal in the case of C.C.(Prev.) v. Pir Khongsdir 1998 (97) E.L.T. 332 (T) wherein this Tribunal held that "While I do not agree with the observations of the adjudicating authority that the penalty under Section 112(b) is not required to be imposed because the respondent was only a carrier but I find on the basis of the over-all evidence on record that there was no warrant for imposing any penalty on the respondent." On careful consideration of the submissions made and findings as above, we set aside the order imposing penalty on Shri Rakesh Kumar. Appeal is allowed accordingly.