TaxTMI 
TaxTMI 
2006 (3) TMI 171
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....any named M/s. Planters Airways Limited when the same was on its way from Siliguri to Guahati and it was found to be loaded with some packages containing goods of foreign origin of miscellaneous nature, such as, cordless telephones, rechargeable emergencies lanterns, record players etc. Sri Sukhendu Bikash Bakshi, the representative of the transport company in his statement given on 10th October, 2001 stated that the consignments were booked for different destinations in the North Eastern States and those were booked in accordance with the declaration given by the consignors and on the basis of documents produced by them. He further stated that as a transporter they were not required to verify the contents at the time of booking of the consignments. The transport company, however, disclosed the names and addresses of all the consignors of the consignments. (b) On the above basis, show-cause notices were issued to all the persons concerned proposing confiscation of the goods as also the truck involved, along with the imposition of personal penalties upon the various persons involved. (c) Those ....
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....According to him, as a transporter his client had booked those articles for transportation at the request of the consignors and as such, it is the absolute responsibility of the Customs Authority to prove that those are smuggled goods and unless they prove specifically that those are smuggled goods, no order of either confiscation or imposition of penalty can be passed. At any rate, Mr. Das continues, the transporter cannot be penalised even if those items were smuggled. 6. Mr. Das next contends that the items confiscated herein being non-notified items in terms of Section 123 of the Act the Tribunal rightly set aside the imposition of penalty and confiscation. In support of such contention Mr Das relies upon the following decisions : 1. Commissioner. of Cus. (Prev.), W.B., Kolkata v. Sudhir Saha reported in 2004 (172) E.L.T. 26 (Cal.); 2. Rajeev Kumar Aggarwal v. CEGAT reported in 1997 (94) E.L.T. 76 (Del.); 3. Santosh Gupta v. Union of India reported in 1990 (48) E.L.T. 210 (Bom.); 4. &nbs....
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....ecorded that the Revenue had failed to prove that those goods were really smuggled and as such, the Tribunal not only set aside the order of confiscation and imposition of the penalty upon the transporter but also directed return of the confiscated articles including the truck to the transport company. 8. In the fact of the present case, we are of the view that the Revenue has discharged its burden of proving the fact that the articles were really smuggled goods and were hidden by some indigenous goods of Indian origin lest those goods are discovered by the appellant. 9. In our view, if a person carries on business of transportation, it is his duty to check up what items it is transporting. Merely because the consignor has given a particular description of the items sought to be transported, a transporter is not bound to accept that as correct. As a transporter, it has a primary duty to verify the items so that contraband articles are not passed out through it. The transporter must also be sure that the consignor is disclosing his genuine address and identity and that can be easily verified by either demanding production of voter identity card or other recognised identity car....
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....above. Therefore, in this case it is well-established that the truck in question owned by transporter was used for smuggling of the foreign goods and the transporter cannot evade its responsibility for abetting such crime. 12. We now propose to deal with the decisions cited by learned advocate for the respondents. 13. In the case of Commissioner of Customs (Prev.), W.B., Kolkata v. Sudhir Saha (supra), a Division Bench of this Court merely held that in case ol non-notified goods under Section 123 of the Act, the burden of proof cannot be shifted to the person from whom such goods were seized and it is for the department to prove the smuggled nature of the goods. There is no dispute with the aforesaid proposition of law but in a case where the department has stalled proceedings on the bona fide belief that the goods seized are smuggled goods and the declared owners are not coming forward even to put forward a claim of ownership of such goods and most of the declared owners are found to be fictitious persons, such burden is easily discharged once it is found that the goods were of foreign origin. In the case before us, nobody has asserted to be the owner of the goods and at the....
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...., thus, find that this decision is of no help to Mr Das's client. 17. In the case of Santosh Gupta v. Union of India (supra) the Bombay High Court was dealing with a case of confiscation of goods where the owner produced two receipts under which she had purchased the goods in question. The person who passed the receipts unfortunately was not traceable but the owner of the studio on whose behalf the receipts were granted had been examined and he stated that he had not issued the receipts, but the material on record had shown that he had signed two receipts at the instance of one film producer, Mr Talwar by name and did not know for what purpose those receipts had been passed. In that case, the Court found that the department did no claim that the receipts were totally bogus and on preponderance of probabilities, it was found that the possessor had discharged the burden, if any, which lay upon her. 18. In the case before us, nobody is taking any responsibility as regards ownership of the goods though there are apparent disclosed owners; therefore, the principle laid down in the case of Santosh Gupta (supra), cannot have any application to the fact of the present case. 19. In....
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....ecision cannot have any application to the fact of the present case. 22. In the case of J.P. Bearing Co. v. Commissioner of Customs, Lucknow, (supra), the Tribunal by relying upon the decision in the case of Hindustan Bearing Corporation (supra), held that the goods should be returned to the transporter, although nobody claimed ownership of the same. We do not approve the said decision and in our view, in a case where the transporter has not discharged its initial duty of checking the items and verifying the identity of the consignor and at the time of or after the seizer of the goods by the Revenue, those consignors did not come forward to assert their claim over those goods, the burden of proof that those are smuggled goods became lighter and in the absence of any counter claim by the owner of the goods, the goods cannot be returned back to the transporter when nobody has even charged the transporter for return of those goods. Such type of a case can be compared with one where after being chased by the Customs-people, the owner has escaped by leaving the goods in the street and in such a situation, the burden of proof upon the Revenue is negligible. 23. In the case of Jupit....
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....are not claiming back the goods from the transporter through whom they allegedly booked those items for transportation. In such a case, no further evidence is necessary for proving that those goods are smuggled goods. The transporter in this case could get benefit of doubt if it had shown that the consignors were genuine and that it had verified the items. The transporter not having discharged those duties is not entitled to get the benefit of doubt. The said decision, thus, does not help the transporter in any way. 25. In the case of Mazda Chemicals v. Commissioner of Customs (Prev.), Ahmedabad (supra), it was held that the contraband goods and other goods if loaded in the same truck and the packages of contraband goods are kept at the bottom of the truck and covered by bags of soda ash, and the contraband goods are not concealed in the bags containing soda ash but found in separate packages, soda ash bags cannot be said to have been used for concealing the smuggled goods. In the case before us, it is the definite allegation that Indian goods were placed above the foreign made goods and those were smuggled goods. Be that as it may, we have already pointed out that transporter n....
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....ion (supra), has no application to the facts of the present case. 28. Similarly, the provisions contained in 6 of the Carriers Act relied upon by Mr Das are of no avail to his client. The said provision is quoted below : "Liability for Non-scheduled Goods [Section 6] 6. In respect of what property liability of carrier not limited or affected by public notice. Carriers, with certain exceptions, may limit liability by special contract. - The liability of any common carrier for the loss of or damage to any property [including container, pallet or similar article of transport used to consolidate goods] delivered to him to be carried, not being of the description contained in the Schedule to this Act, shall not be deemed to be limited or affected by any public notice; but any such carrier, not being the owner of a railroad or tramroad constructed under the provisions of Act 22 of 1863 (to provide for taking land for works of public utility to be constructed by private persons or companies, and for regulating the construction and use of works on land so taken) may, by special contract, signed by the owner of such property so delivered as last aforesaid or by some person duly aut....