TaxTMI 
TaxTMI 
2026 (4) TMI 1238
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.... no. LR 22007661, Shri Manoj Kumar Mourya, for the appellant, informed that the consignment was shortly to arrive and informed the officers about the person namely Shri Prince who had arrived to take the delivery of the said consignment with the details of the vehicle and the details of the consignment. The said vehicle/three wheeler was followed by customs preventive officers along with two panchas. The consignment from the three wheeler got unloaded at the premises bearing no. 239, Kucha Sanjogi Ram, Naya Bans, Delhi - 110006. There were 5 locked rooms in the said premises. The customs officer called the local police on the spot. The person namely Shri Lavish s/o Shri Sunil Kumar/elder brother of Shri Pince (who was escorting the delivery of the said consignment in the three wheeler) claimed the ownership of the goods inside the said consignment. One another person namely Shri Sunil Kumar s/o Shri Harbans Lal claimed himself, the proprietor of M/s. Prince International. He also accepted the ownership of the goods and acknowledged that the goods are foreign origin cigarettes which got transported through M/s. Om Logistics Ltd. Vide Panchnama dated 30/31.10.2020, 1,37,000 cigarette....
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....nsignment no. LR22007661, department formed an opinion that M/s. Om Logistics were well aware and were having knowledge that the goods under remaining 2 consignments were illegally imported cigarettes of foreign origin and were also liable for confiscation. 1.5 Accordingly, a Show Cause Notice bearing No. 19/2021-22 dated 22.04.2021 was served upon M/s. Om Logistics Ltd and Shri Umed Singh s/o Shri Tika Ram, the Operation Manager of M/s. Om Logistics Ltd. proposing imposition of penalty upon them under Section 112 (b)(1) of the Customs Act, 1962. The notice was also served upon the co-noticees, Shri Sunil Kumar, M/s. Sohan Lal and Sons and Shri Bharat Bhushan Batra invoking Section 123 of Customs Act, 1962 and proposing confiscation of seized foreign origin cigarettes under Section 112 (b)(1) of the Customs Act, 1962. The said proposal was confirmed vide Order-in-Original No. 502/2021-22 dated 29.03.2022. Appeal against the said order has been rejected vide the impugned Order-in-Appeal. Being aggrieved, the appellants are before this Tribunal. 2. I have heard Shri Ashutosh Shukla, Shri Shubham Sharm and Shri Vinay Kumar, Advocates for the appellant and Shri Anuj Kumar Neeraj,....
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....s proof for establishment of the said mens rea. The customs officer had intimated Shri Umed Singh about remaining two parcels to be put on hold and he has categorically admitted for receiving the said intimation. Shri Umed Singh had conveyed the said intimation to the delivery office as per the alert/intimation/e-mail. The only failure of not intimating the said e-mail to all the branches has wrongly been held as an intentional act on part of the appellant for facilitating the improper/illegal importation. The communication by Shri Umed Singh only to the delivery branch is absolutely as per the Standard Operation Procedure of the appellant's company. The employees have simply denied receiving any information of putting the impugned consignments on hold. The delivery of such a consignment from the delivery office in Uttar Pradesh is wrongly alleged to be an offence on part of the appellant. Learned counsel has relied upon the following decision to plead that the penalty under Section 112(b)(1) of the Customs Act, 1962 can be imposed only on the person who had knowledge about the goods that those are liable to be confiscated: (i) Commissioner of Customs (Import) Vs. M/s. Tri....
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....relying upon the decision in the case of Pine Chemical Suppliers Vs. Collector of Customs (Bombay) reported as AIR 1993 SC 1185, learned Departmental Representative has prayed for both the appeal to be dismissed. 5. Having heard both the parties, perusing the entire records and the case law cited by both the parties, it is observed and held as follows: 5.1 The Commissioner (Appeals) vide impugned order has confirmed the imposition of penalty of Section 112(b) upon M/s. Om Logistics Ltd. in Appeal No. C/51130/2025 on the basis that since one of the three consignments bearing LR No. 22007661 dated 28.10.2020 issued by M/s. Vandana Store was found to have contained foreign origin cigarettes instead of declared goods i.e. 'Garments', it was assumed by the adjudicating authority that the remaining two consignments also might have contained the foreign origin cigarettes. It has been mentioned in the impugned order that the exact number of goods of both the consignments could not be figured out as the goods were cleared by M/s. Om Logistics despite the instructions issued by the department vide e-mail dated 03.11.2020. The similar penalty has been imposed upon Shri Umed Singh, the a....
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....nclave, Block-G-, Paschim Vihar, Delhi; these premises have no connection with the appellants. (v) At the time the consignments were booked, the goods were declared as 'Garments'. (vi) Shri Umed Singh, the another appellant, admittedly received the e-mail dated 03.11.2020 from the customs (Preventive) department about the aforesaid remaining two consignments to be sensitive in nature, hence to be informed to the Customs (Preventive) on arrival. (vii) Appellant M/s. Om logistics Ltd. duly cooperated while intercepting the consignment of LR No. 22007661 and the another consignment bearing No. 802201006735 seized on 06.11.2020. (viii) Shri Umed Singh conveyed the intimation to delivery branch at transport center, Punjabi Bagh, New Delhi which as per the LR, was the destination of the said consignment. (ix) Both the other consignments (LR No. 22042441 dated 28.10.2020 and 22042348 dated 29.10.2020) got delivered from the godowns at Delhi-UP Border and Dadri Hub to the persons who had come for taking delivery by producing duly stamped consignment note/LR/Bill in accordance with Standard Operating Procedure of the company. 5.4 The above obs....
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....signment note. Hence it is held that the delay in intimation from the customs preventive, the approximate of date and time to the date and time of the intimation e-mail and the standard operation procedure of the company to allow delivery from any other delivery branch of the company are sufficient to falsify the element of mens rea with the appellants i.e. knowledge that the goods in the consignments to be transported by them are such which are liable for confiscation. 5.7 Further, I observe that the sine qua non for penalty of Section 112(b) or any person is that either the person has acquired possession of the goods with the knowledge or belief that the said goods are liable to confiscation under Customs Act/Rules or that such person, in any way, is concern in transporting, removing, depositing, keeping, concealing, selling or purchasing or dealing with those goods in any other manner with such knowledge or plea. The acquisition of possession of goods is, undisputably a physical act i.e. act which could not have been possible without handling or movement of excisable goods as mentioned in the rule. The mere fact that physical possession of goods is mandate for doing the activ....