Full Judgment
Yusuf was appointed by Internal Security Ministry of Kuwait and. his salaries and other emoluments and benefits were paid directly from the coffers of the Ministry of Kuwait and that he was not their employee nor they were in any way concerned with him. His acts are in his personal capacity and the appellant were neither aware nor involved in his activities. He also submitted that the seized currencies, Hens and Monkeys were owned either by said Yusuf or somebody else and not by the appellant. He further submitted that the ld. Commissioner has erred in holding that the said Yusuf was performing the duty as Security Officer of the appellant which enabled him access to the screening and baggage intersection. Since said Yusuf is absconding after bail granted by the Hon'ble Bombay High Court, his statement, if any, has no evidentiary value. So far as the other co-accused Alloughani is concerned, he is not traceable after his statement was recorded and as such his statement also has no evidentiary value. So far as the statement of Mr.
Ranjit P. Keluskar and Mr. Fahad is concerned since no opportunity of cross-examination was given, their statements also have no evidentiary value. The act or the modus operandi alleged to be adopted by the said Yusuf is his independent act without any help or connivance. That in view of the clear admission of Yusuf, no liability can be fastened on the appellant. Whatever Yusuf did it was all in his personal capacity without any knowledge or connivance of the appellant. Therefore, the appellant is not liable for any penal consequences and the penalty needs to be set aside. In support of his contention, the ld. Counsel relied on the following decisions:-Akbar Badruddib Jiwani v. Collector of CustomsPeejay Woollens P. Ltd. v. Collector of Customs, BombayN.B Killick Air Courier & Forwarders Ltd. v. Collector of Customs, 2. A perusal of the said decisions shows that in order to impose penalty under Section 112 of the Customs Act, 1962 mensrea is necessary to be established. The ld. Counsel forcefully contended that since no evidence has been brought on record to prove that the car was used with the knowledge and the connivance of the appellant, there is no question of confiscation. The ld. SDR appearing on behalf of the revenue reiterated the order of the Lower Authorities and submitted that the ld. Commissioner has passed the correct order.
3. After hearing both sides, perusal of the records and the case laws relied on by the appellant, we find that no mensrea has been established or any knowledge attributed to the appellant for the act done by the said Yusuf. In the absence of any concrete and positive evidence having been brought on record, we do not find as to how the car of the appellant can be confiscated and the penalty imposed on him.
In the facts of the case and the legal position as given in the cases mentioned above, we set aside the penalty and confiscation. The appeal of the appellant is, thus, allowed.