ORDER
J.H. Joglekar, Member (T)
1. A number of courier agencies operate at International Airport. They carry samples, documents and other goods sent by person abroad to persons in India. Where any goods are dutiable, they get such goods appraised and pay the duty claiming it later from the consignees. The staff of such courier travelled on board International flights with such goods. On their arrival, the local staff takes possession of bags carrying such goods for processing and clearance through the customs.
2. On 22-12-1993 some of the employees of Courier Agencies operating at Mumbai Airport were intercepted. Examination of the bags being taken through the airport hall, disclosed Automobile parts, Computer parts, Wrist Watches, Cordless Telephone and other durable goods. These goods were seized. Investigations were conducted. Statements of the staff of the Courier Agencies were recorded. Show Cause Notice was issued seeking confiscation of the goods seized and alleging liability to penalty of the persons involved in such clandestine clearance, as well as on the Courier Agencies.
3. After hearing the concern persons, the Commissioner of Customs, Sahar Airport passed orders confiscating the goods absolutely, and imposing penalty on four courier agencies and their staff. The present appeals are filed by M/s. Patel on Board Courier Service and Shri Mukesh Patel, a dealer in Automobile parts. Since the facts are common and the same order covers both appellants, these appeals are being decided vide this common order.
4. Two other carrier on whom the same set of evidence penalties had been imposed upon in the impugned order, had filed appeals challenging the penalty.
5. We have seen the Tribunal’s order No. 3158/97/WZB dtd. 9-7-
1997 [1998 (97) E.L.T. 182 (T)] where the appellant was M/s. Killick Air Cou
rier and Forwards Ltd. We have also seen order No. 3145-47/97/WZB in the
case of M/s. Sky Pak Services Speciality Ltd. [2002 (149) E.L.T. 1464 (Tri.)]. In
both these orders, the Tribunal had held that even though the employees of
these two companies were involved in clandestine removal of goods, there
was nothing in the evidence to show that the companies had engaged in or
had connived in such clandestine activities. On these grounds the appeals
filed by Courier Agencies were allowed.
6. We have seen the evidence disclosed in the proceedings as regards M/s. Patel On Board Courier (P.O.B.C). We find that the statement given by their employees not incriminate them. The findings of the Commissioner that the appellant P.O.B.C. had any role to play is not based on any cogent evidence. In fact the Tribunal in Para 6 of their judgment in the case of Killick Air Courier case had commented upon the similar observation made by the Commissioner in their cases.
7. On perusal of evidence as also the earlier order passed in identical cases, we find that the Commissioner’s order imposing penalty upon Patel on Board Courier does not sustain. Their appeal is allowed with consequential relief.
8. Shri Mukesh Patel was not an employee of any agency. He was a dealer in Automobile parts. One Vipul Bhat had on earlier occasion in identical circumstance had smuggled in such parts and had given them to Mukesh Patel who had in turn sold them to one Chaddha.
9. In the present case he is not connected with the goods seized and confiscated. The Commissioner in his order very fairly states that there was not sufficient evidence to prove that Mukesh Patel was concerned with these goods. He, however, penalised him on the basis of the past conduct. The penalty under the Act can be imposed where the person by his action or lack thereof renders any goods liable to confiscation. In the absence of any such action on part of Mukesh Patel, orders imposing penalty upon him do not sustain. This appeal is also allowed with consequential benefits.