TMI Blog2003 (10) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... ventive) intercepted, on information, tempos outside Green Gate of Bombay Docks. The driver of tempo No. MDD-6522 produced relevant Baggage Declaration forms (hereinafter referred to as BDF ) and other connected documents. The tempo Nos. MNP-4113 and MRQ-2609 were found to be carrying packages cleared, from Unaccompanied Baggage Centre, Mumbai (hereinafter referred to as UBC ), Under BDF No. 755, dated 20-5-1999. The packages were having markings of BDF number, date and passport number and were found to contain electronic goods, like Video Cassette, Walkman, Camera, TV set etc., valued at Rs. 20,70,645/- at Local Market Value (hereinafter referred to as LMV ). They were seized under the provisions of Central Excise Act, 1962. Enquiries m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough the Steamer Company admits to have given delivery order to him. No effort appears on record to trace out Imtiyaz and/or Moinuddin. (d) The Commissioner (Preventive) adjudicated the matter vide his order dated 21-5-2001. After finding the Md. Ayub has not come forth to claim the goods and at the address given on BDF, Bill of Lading and Passport were fictitious he held that the passenger Md. Ayub was not a bona fide passenger entitled to Transfer of Residence facility under Baggage Rules and goods in excess of these declared as Baggage form were consumer goods ordered the confiscation of - (i) Goods already declared confiscated and redeemed and cleared on payment of duty under the provisions of Section 119. (ii) Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him. He was not authorised to sign the same. This was in direct conflict with the statement of the Director of CHA, who had stated that he was authorised to sign. (iv) In view of the above it was concluded that the CHA, the Dock Clerk and the passenger were missing the T.R. benefit were hand in glove and that was a mutual understanding between them, the statements of the Dock Clerk in aiding Shri Moideen and Shri Mohammed Ayub would prove his involvement in the commission of the offence. Since the Dock Clerk was an employee of CHA it is evident that the CHA firm had prior knowledge of the work of the Dock Clerk and that proves the CHA firms involvement. Hence the liability for penalty under Section 112(a) of the Customs Act was invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found to conceal a much larger value goods, subsequently found, as allegedly valued by the Marine and Preventive officers. (b) Agency function of a CHA, is over, at that stage where he handed over the goods to the passenger i.e., at UBC Mumbai Docks, when transport was organised by persons other than the CHA or his clerk. It is on record and the case of Revenue, that the passenger (Shri Mohammed Ayub) and his contacts Shri Moideen and others engaged the tempos, with directions to take them to the market. The role of the Dock Clerk of CHA is limited, on facts and in law to ministerial assistance in the paper work and in getting the delivery of the goods from Port authorities and rendering assistance to the Customs Baggage Officer in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e penalty imposed under Section 112(b) in the present proceedings cannot be upheld. (d) The adjudication proceedings did not consider Shri Mohammed Ayub, the passenger liable to any further penalty. Even when goods claimed by him on the BDF were found to be liable for confiscation by the Commissioner. Shri Moinuddin and others who had engaged the tempos have not been held to be liable for penalty for handling the transportation of the goods in question. The penalty on the CHA and his clerk under Section 112(a) therefore cannot be upheld since they do not and can have no claim, on any goods ordered to be confiscated in this case. They have handled this Baggage Clearance case pursuant to a CHA licence granted to them by Commissioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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