Judgment:
1. These 3 appeals arise out of a single order passed by the Commissioner of Customs, ACC, Mumbai. The facts being common, these appeals are disposed of vide this single order.
2. M/s. S.R. Shipping Agency, the first appellants were engaged in the business of booking of cargo. Shri Raju Vadilal Gandhi and Shri Sunil Ashok Mehta were partners in the firm S.R. Shipping Agency.
On 23-6-93 one Shri Ankush Mhashilkar filed a shipping bill for export of Fire Resistant Filing Cabinets to South Africa. The shipping bill was got cleared by him and the cargo was brought to the godown of M/s. JAC Air Services, who are IATA cargo booking agents. The proceedings do not show the identity of the person who brought the cargo. For booking the space, the completed shipping bill was given by Mhashilkar to the present appellants who in turn handed over the shipping hill to IATA agents M/s. JAC Air Services.
The clearing agents were M/s. JAC Enterprises whose sister concern is M/s. JAC Air Services. On 25-6-93, at the instructions of the Custom officials, Shri Sunil Mehta took the exporter Shri Ankush Mhashilkar to Customs but was not present for the discussions. On 26-6-93, the Customs required the presence of Shri Mhashilkar. Both partners of the appellants' firm tried to locate him but Mhashilkar could not be located. On the same date, with the help of the sniffer dog narcotics in the form of mandrex tablets were found concealed in the filing cabinets. Statements were recorded, show cause notices were issued. After hearing the concerned persons, the Commissioner passed the impugned order. In his order, the Commissioner observed that the present appellants had not limited their action to booking cargo space but that they had tried to complete the Customs formalities through CHA. He also observed that Shri Gandhi, the partner of the present appellants was earlier an employee of M/s.
JAC Enterprises, CHA. He, therefore, observed that they were party to the conspiracy of the export of the mandrex tablets. On this ground, he imposed penalty on the 3 appellants. At the same time, however, he exonerated the proprietor of the CHA but imposed penalties on employees of the CHA. Against this imposition of penalty on Shipping Agents and its partners, these appeals have been filed.
2. Shri Doiphode, the ld. Counsel for the appellants submits that the conviction of the Commissioner that the present appellants had conspired with Mhashilkar for export of narcotics was not backed by any evidence at all. He submitted that the shipping bill was got passed from Customs by Shri Mhashilkar. Shri Mhashilkar was known to his client. His client merely acted in between Mhashilkar and JAC Air Services who are required to book the cargo. He submits that his clients had never handled the physical consignments. It is not the charge that the cabinets were taken to the Customs area by his clients.
In the various statements recorded of Shri Sunil Mehta, the facts have been reiterated. Shri Doiphode also shows us the subsequent action taken under Rule 23(2) of the CHA Licensing Rules 1984 on M/s. JAC Enterprises. The ground for action on the CHA was this very case involving seizure of mandrex tablets. In charge No. 5 it was alleged that CHA had aided and abetted the exporter in the attempted smuggling of mandrex tablets. In the cited order of the Commissioner of Customs, Bombay, this charge has not been established and the licence which had been suspended for over 2 years was restored. In view of these facts, Shri Doiphode submits that the appellants deserve total relief.
3. Shri Sarkar arguing for the Revenue reiterates the Commissioner's findings.
5. It is not the case of the Customs that the present appellants had handled the consignments of furniture from which narcotics were recovered. Shri Doiphode claimed that the narcotics were so well concealed, that during the enquiries on 25-6-95 when Shri Mhashilkar was also present the narcotics were not detected. They could be detected only when sniffer dog was brought. He submits that when his client had not physically handled the consignment, he could not know about the concealment.
6. We also find in the show cause notice that the charge of showing any usual interest in booking and clearance of the consignment was made against not only S.R. Shipping Agency but also M/s. JAC Air Services and JAC Enterprises. We find that the Commissioner of Customs exonerated M/s. JAC Enterprises of any conspiracy or involvement in the export of narcotics. The standing of the present appellants is on a better footing than of CHA.7. On perusal of the entire evidence and on hearing the Counsel and the DR, we find that there is nothing on record to establish that the present appellants had conspired with the exporter for export of narcotics or that they had knowledge of the contents of the export consignment. In view of this, the orders of penalty imposed upon the present appellants do not survive. The appeals are allowed with consequential relief, if any.