TMI Blog2001 (12) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... with brown colour tape around it without any description there on or included in the manifest of the said flight which on opening were found to contain 50 pieces marked Union Bank of Switzerland 10 tolas 999. On testing the representative samples of the said bars, from the seizure of bars, it was ascertained and reported vide assay report dt. 18-9-95 of the General Manager India Government Mint, Bombay to be gold of 999.20 purity. The show-cause notice was thereafter issued inter alia to the present appellant asking them :- M/s. Kuwait Airways and other known/unknown persons concerned in smuggling of gold and others, who were concerned in carrying/removing, depositing or harbouring, keeping concealing or purchasing or in any other manne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the passenger which indicated place of departure and destination and a tag is affixed on the package. In case of cargo Air way bill is prepared in triplicate and one of copy is given to the consignor, second copy is signed by the consignor and the carrier (Air lines) and accompanies the cargo and the third copy remains with the carrier which is signed by the consignor also. No goods are accepted without the baggage checks or air way bill/consignment note for loading in the aircraft. All the goods are physically checked by the carrier or their agents while loading on the pallets and the loading of pallets in aircraft is also supervised by the airlines. During the course of these checks and supervision, no other agency or individual has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under seizure, contraventions of Sec. 111(d), (e), (f) (i) sub section has been arrived at. Sub-sections (d), (e) (i) relate to dutiable or prohibited goods on a conveyance brought into India. The carriers in whose Aircraft the gold under confiscation has been found, many not be liable for confiscation arrived at under (d), (e), (i) sub section of Sec. 111 of the Customs Act. Though they have not challenged that confiscation of the gold, yet the liability for penalty, the subject matter of this appeal, has to be examined and determined vis-a-vis liability for confiscation under Section 111(f). Section 111(f) reads as follows :- Any dutiable or prohibited goods require to be mentioned under the regulations in an import report manifest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ason to believe that unmanifested goods are liable for confiscation under Sec. 111(f). (b) In view of the extension of the coverage of the persons who are liable for penalty and the specific concern of the carrier for having brought unmanifested packages, which have been found in confiscation under Sec. 111(f). I do not consider, all the submissions made by the ld. Advocate before me regarding the absence of mens rea and or absence of concern, relying on the Supreme Court decision in the case of Radha Kisan Bhatia, - (AIR 1965 Supreme Court 1072), Gian Chand v. State of Punjab - [1983 (13) E.L.T. 1365 (S.C.) = AIR 1962 Supreme Court 496], Commissioner of Customs (Prev.) Shillong v. Pir Khongsdir reported in [1998 (97) E.L.T. 332] and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 Lacs was imposed by the Commissioner without ascribing the same separately under Sec. 112(a) or 112(b). I find imposition of a penalty of Rs. 2 lacs is definitely not a lenient view. The amount is considerably high especially when this was the first occurrence of its kind. The Commissioner need not have imposed a heavy penalty of Rs. 2 Lacs. A minimum penalty could have served the purpose. The ld. Advocate relied upon the decision in the case of B. Laxmichand v. Govt. of India reported in [1983 (12) E.L.T. 322] to submit that the charges against the accused should be clear and not ambiguous and the authorities must be clear in their minds whether clause (a), (b) of Sec. 112 will apply or both would apply. When such application of mind is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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