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TMI Blog2018 (4) TMI 1701X X X X Extracts X X X X X X X X Extracts X X X X ..... n them under section 112 of Customs Act, 1962 and section 114AA of Customs Act, 1962. 2. The detriments that were visited upon the appellants was the consequence of interception of a package received from Dubai at EICI Courier Terminal of the International Airport Mumbai and, though described in courier bill of entry no. 29519/14.09.2017 as 'kaftan sample', was found to be articles of clothing laced with gold beads weighing 364 gms and valued at Rs. 8,97,902. The consignment, booked by one Mohammed Athif, was intended for delivery to one Aayazuddin Shaikh of Mumbai for which documentation was filed in the name of M/s Poonam Courier Pvt Ltd, an Authorised Courier under the Courier, Imports and Exports (Clearance) Regulations, 1998. 3. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f penalties on the two individual-Directors in the absence of any role in the alleged breaches attracting penal action. Furthermore, he cited the decisions of the Tribunal in Lemuir Express v. Collector of Customs, Bombay [2000 (126) ELT 749 (Tribunal)], PS Bedi & Company v. Commissioner of Customs, New Delhi [2001 (133) ELT 86 (Tri-Del)] and V Esakia Pillai v. Commissioner of Customs, Chennai [2001 (138) ELT 802 (Tri-Chennai)]. He also drew attention to the specific portions of the impugned order exonerating the Authorised Courier from any active role in the attempt. 5. Learned Authorised Representative urged us to uphold the categorical, and valid, findings of the first appellate authority. Citing from various provisions of the Regulati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Poonam Courier Pvt Ltd was a manifestation of folly rather than deliberate connivance with the smuggling. Note is also taken of the absence of evidence that would justify the finding of deliberate involvement on the part of the various noticees - an integral requirement for invoking of section 112 and section 114AA of Customs Act, 1962. Admittedly, the statements are bereft of such indictment. In re V Esakia Pillai, it has been held that '5.... We note that there is no evidence either in the form of a confessional statement of the appellant, or any statement of exporter or anybody to show that the appellant had knowledge or information that the contents... were different from those described in the shipping bill...' while in re PS Bedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e limited company can only act, or fail to act by not fulfilling its duties through such acts or omissions of these human beings. Therefore in a case of this kind not involving breach of failure to follow statutory obligation, penalty could only be imposed after the involvement of a particular employee were shown.... For penalty to be imposed on the appellant, the Commissioner has to show the acts or omissions, that company was guilty of such acts or omissions, which would call for imposition of penalty, and such acts or omissions are attributable to its individual employees...' in re Prathamesh Shipping P Ltd, and the requirement to overcome this test cannot be ignored. That is, patently, not evident here. 10. In view of the above, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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