TMI Blog2008 (5) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... y Saxena, SDR, for the Respondent. [Order] - Shri Suresh Rajaram Newagi was/is an Assistant Shed Superintendent with the Mumbai Port Trust. In October, 1999, he was posted as Assistant Shed Superintendent in uncleared warehouse. On checking, the Customs found some excess cargo and alleged that same was to be clandestinely removed. The charges against the appellant is that he received unmarked wooden crates in the shed and did not forward the same for Customs examination, passing out goods without the permission of the Customs. The Commissioner concluded that he was responsible for de-stuffing of containers, warehousing in shed and for warding the goods for Customs Examination, delivery of the goods as per BDF after Customs pass out. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported and such goods are put up for auction through the Customs after proper documentation. Hence, immediate reporting of excess/shortage is normally not a practice. There is no allegation that the appellant was a part for any gang or smugglers. Even after recording statements of various persons, there is no evidence to show that the appellant was aware of any contents of the excess packages or that he had been given any monetary or other consideration for the alleged activity. The appellant did not send any packages for Customs examination because it was not his job to send packages for Customs examination, which is done by importers or their agents, who make such request for their cargo and after suitable endorsement from the Central D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence about the active role of the appellant and since no evidence has been produced by the department. to show that he is part of any group of smugglers etc. or that he was aware about the excess goods lying in his shed, penalty cannot be imposed on him as his lapse, if any, could also be considered only as supervisory lapse. I also find that an inquiry has been conducted by Mumbai Port Trust on the very same charges against the appellant and the inquiry report has categorically found that no charge against the appellant is proved. As no direct/circumstantial evidence to show his role as abetting to the smuggling activity exists, therefore, the appellant is not liable to any penalty in absence of mens rea or knowledge of the actual smugg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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