ORDER
J.H. Joglekar, Member (T)
1. The goods valued at Rs. 13,09,700/- being transported in 7 tempos were intercepted. One baggage declaration form filed by Shri L.R. Reddy was also noticed. The goods cleared under the Transfer of Residence Rules as also on adjudication on payment of duty, fine and penalties, were found to be of lower value and found to be lesser quantity than the goods intercepted. The passenger was not found. The clearances were handled by Shri Jairam T. Asrani, the proprietor of CHA M/s. Thawardas Wadhumal. He claimed that they were engaged in the clearance of unaccompanied baggage and that the actual work of preparation of documents were done by the clerk Shri Deepak Parekh. Shri Deepak Parekh in his statement deposed how the passenger Shri Lingala Raj Reddy had cleared his goods with his assistance, how the goods were examined and how the clearance was done on payment of duty, fine and penalty. In his later statement, however, he deposed that he was aware that the value of the contents of the baggage was much higher than what was declared.
2. After issue of show cause notice, the Commissioner of Customs (Prev.) Mumbai adjudicated the case, confiscated the goods and imposed penalty of Rs. One lakh upon the CHA and of Rs. 25,000/- on the clerk of the CHA Shri Deepak Parekh. 2 appeals have been filed against this order by these persons and the present applications for waiver of pre-deposit of the penalties.
3. Shri Kantawala, the Id. Counsel for the applicants submits that the second statement of Shri Deepak Parekh was not later retracted but states that the language would indicate that his statement was not voluntary. He submits that he is merely a clerk and does not have the financial capacity to pre-deposit the penalty. As regards Shri Asrani the proprietor of CHA, he submits that he never directed the clerk to obtain the documentation and he was not aware of the existence of contravention.
4. We find that the statements of Asrani and also of Shri Deepak Parekh do not show that the CHA had knowledge of the fraud. We, therefore, waive the condition of pre-deposit of the penalty imposed on M/s. Thawardas Wadhumal. As regards Shri Deepak Parekh, we find a conscious knowledge reflected in the statement. However, taking into account that he is only a clerk, we direct him to pre-deposit a nominal sum of Rs. 2,500/- (Rupees two thousand five hundred only) as a pre condition of hearing of his appeal within four weeks from today. On depositing the said amount, there shall be stay and waiver of the balance of penalty amount imposed upon him, during the pendency of the appeal.
5. Compliance to be reported on 5-4-2002.