ORDER
P.S. Bajaj, Member (J)
1. The above captioned appeals have been filed by the appellants against the common impugned order-in-original dated 31-8-2000 vide which the Commissioner of Customs has imposed penalties of Rs. 5 lakh each on them under Section 112(a) & (b) of the Customs Act.
2. The appellants No. 1 is a company engaged in the transportation of the goods as carriers, while the appellants No. 2 is a Manager of the company. On receipt of specific information, search was carried out at the office-cum-godown of the appellants’ company and as a result thereof, the Officers of the New Customs House effected recovery of foreign origin ball bearings, detailed in the show cause notice. At the time of search, appellants No. 2 was present and he produced GRs and invoices which accompanied the ball bearings at the time of receipt at their godown from Bombay. But on verification, the addresses of the consignees of the goods were found to be incomplete and fictitious. No document regarding the lawful acquisition of the ball bearings of foreign origin was produced by appellants No. 2 and as such the same were seized on the belief of having been smuggled into India illegally. On completion of investigation, show cause notice was served on both the appellants wherein they did not claim the ownership of the ball bearings and maintained that those were transported from Bombay to Delhi under valid GRs and invoices. But the Commissioner of Customs did not accept their version and imposed penalties of Rs. 5 lakhs each on them, besides ordering the absolute confiscation of the seized goods (ball bearings). The Commissioner also imposed penalties on other noticees, detailed in the list appended to the impugned order (with which we are not concerned as they are not parties before us in the present appeals).
3. The learned Counsel has contended that there is no reliable evidence on the record to prove that the appellants had any knowledge about the illegal transportation of the impugned goods as they received in a packed condition from Bombay under the cover of GRs and invoices being working as carriers and those were to be delivered to the consignees on receipt of the transportation charges on production of the original GRs. Therefore, the provisions of Section 112(a) & 112(b) could not be invoked against them for imposing penalties.
4. On the other hand, the learned JDR, has reiterated the correctness of the impugned order.
5. We have heard both sides and gone through the record. We find from the record that the appellants have been penalized for the simple reason that the ball bearings of foreign origin were found from their godown and for which they did not possess any valid document showing their valid import from a foreign country. But, in our view, this circumstance itself was not enough for invoking the provisions of Section 112(a) & (b) against them. The appellant No. 1 is a common carrier engaged in the transportation of the goods from one place to another. They have got their one office at Bombay. These goods were got booked from Bombay by various consignors at the Bombay office of the company, appellants No. 1, for transportation to Delhi. The details of those consignors had been given at page 2 of the impugned order. The goods were in sealed condition. The appellants No. 2 at the time of seizure of the goods produced the GRs and invoices which were received by them being the Manager of the company, along with the goods. The fact that later on the consignees of the goods had not made themselves available to the Customs authorities for inquiry during the investigation of the case, did not lead to an inference that the appellants had knowledge that the goods received by them in a sealed packing, were smuggled goods. Being a carrier, the Bombay office of the appellants’ company, were not required to hold any inquiry about the antecedents of the consignors of the goods before accepting the goods for transportation to Delhi. Whatever addresses the consignors gave them at the time of booking of the goods at Bombay, the same were recorded by them in the GRs and we find that complete addressed had been mentioned of each consignor in the GRs.
6. Besides this, there is not an iota of evidence on the record to prove that the appellants had any knowledge about the smuggled character of the goods. No evidence had been adduced by the Department to prove that the seized goods were smuggled goods. The seized goods which are ball bearings, are available in the market for trading. The initial burden, therefore, was on the Department to prove that the same had been smuggled illegally into Indian from a foreign country. No presumption that the goods were smuggled goods could be drawn from the fact that the goods were of foreign origin. Even no evidence has been brought on record to prove that the appellants had knowledge about the smuggled nature of the goods. The goods, as observed above, were booked by their Bombay office for transportation to Delhi under the cover of GRs and invoices. The non-availability of the consignors or the consignees later on, to the Customs Officers during investigation, could not lead to an inference that the appellants had knowledge about the smuggled nature of the goods.
7. Therefore, for want of any evidence to prove the smuggled character of the seized goods so also the knowledge of the appellants about the same, the provisions of Section 112(a) & (b) of the Customs Act could not be invoked against them for imposing penalties. Therefore, the impugned order against the appellants to the extent to which it has been challenged before us is set aside. The appeals of the appellants are accepted with consequential relief, if any, permissible under the law.