1. This is appeal dated 23-11-1981 filed as a revision application on behalf of M/s. Bee Emm (India) Exports, New Delhi against Order No.340-341/81, dated 4-5-1981 passed by the Central Board of Excise & Customs, New Delhi. This order of the Board arose from Order No. 33/80, dated 15-9-1980 passed by the Collector of Customs and Central Excise, New Delhi. On the day we heard this appeal we also heard the appeal filed by Shri Brij Mohan Mehra, Proprietor of M/s, Bee Emm (India) Export. As the order of the Collector of Customs and the order of the Board dealt with both these persons M/s. Bee Emm (India) Exports and Mr. Brij Mohan, we heard the arguments together on the same day i.e.
2. The learned Counsed Mr. Jain who appeared on behalf of M/s. Bee Emm (India) Exports and Mr. Brij Mohan Mehra began by saying that he had asked for the seizure report but this had not yet been supplied to him although the Bench had ordered the supply of the seizure report, when the case last came up before the Bench on 9-10-1984. Mr. Ohri the learned Counsel for the Department said that no seizure report was available.
3. The learned Counsel Mr. A.C. Jain, Advocate, said that he disputed that there was a seisure of hashish from his consignment. The firm M/s.
Bee Emm (India) Exports despatched a consignment of Moon Bell sets made of brass on 30-10-1972 to the United States of America. The value of the consignment was invoiced at Rs. 28,908. This consignment was handled by M/s. Continental Carriers, Customs clearing agents at New Delhi and it was shipped by B.O.A.C. It was very strongly argued by the learned Counsel that though the seizure of hashish weighing 360.61 bs.
was seized in the United States of America in November, 1972 the show cause notice was issued in October, 1978, after a gap of 6 years. A statement which was recorded from Shri Brij Mohan on 5-4-1973 reveal nothing incriminating. In this statement Shri Brij Mohan discloses only that he agreed to ship a consignment of 25 packages containing 7200 sets of brass bells. The consignment was addressed to Mr. John Machley, President Hellenic Trade Reno Nevada. He received payment for this consignment a month later through the Syndicate Bank, Asaf Ali Road, New Delhi. He was not able to say how the hashish found its way into the consignment on its arrival at San Francisco.
4. The Counsel argued that the Collector relied heavily on a report received from the American Embassy which indicated that the consignment shipped by Bee Emm (India) Exports was the consignment from which the drug was found. But this report has not been tested nor have any persons been offered for cross-examination. Furthermore the consignment left New Delhi on 31-10-1972 arriving the same day in London and was transhipped on the same day to another flight and arrived at New York on 1-11-1972. There it was transhipped to another airline, American Airlines by which it arrived at San Franscisco on 4-11-1972. The hashish was recovered by U.S. Customs on 6-11-1972. It will be seen, said the Counsel, that at these various points of transhipment it was easy for somebody to slip the hashish into the consignment without anybody's knowledge. In matters of transhipment, a number of people would have handled the consignment | and the consignment therefore lay open to tampering by unauthorised persons. It is not possible for the original shippers to guarantee the safe arrival of his consignment or to guarantee that it would not be tampered with.
5. The seizure was done without his knowledge and even now there was no seizure report and so he was unable to offer any comments or to make any suitable defence, as he was helpless in the absence of the seizure report. The Collector went by the net weight of one brass moon bell set with chain being 100 gr. each, in accordance with the admission by Shri Brij Mohan in his statement of 5-4-1973. Therefore, according to the Collector, the actual net weight of 288 such brass moon bell sets contained in each of the 25 packages of the consignment would come to 28.8 kg. against the net weight of 34 kg. declaread by the exporters in the invoice. The net weight declared for each of these 25 packages would come to 5.2 kg. higher than the actual weight. The excess would therefore work out to 130 kg. which would account for the presence of the contraband matter.
6. On the above scanty evidence the Collector, said the Counsel imposed a penalty of Rs. 50,000/- on Shri Brij Mohan and Rs. 50,000/- on Bee Emm (India) Exports under Section 114 of the Customs Act, 1962. There is nothing in the order in the nature of any evidence to connect Brij Mohan or Bee Emm (India) Exports directly with the hashish seized in the United States of America. Even if it is admitted that there was a seizure of hashish from his consignment and he denied that there was such a seizure, there is no evidence to connect the hashish with Bee Emm (India) Exports or Brij Mohan. There has been unexplained delay in proceeding with the case. The shipment took place in October, 1972, and by February 1973 the Custom House was already in contact with the U.S.Customs about the seizure and has already taken the statement from the Director of clearing agent M/s. Continental Carriers. A statement was taken from Shri Brij Mohan in April 1973. Strangely enough, the show cause notice was only issued on 16-10-1978. For the delay alone, the case ought to be set aside. If the Custom House could not make up its mind from 1973 to 1980 it can only be because the evidence against Brij Mohan and Bee Emm (India) Exports was weak and implausible.
7. The learned Counsel for the Department Shri Ohri defended the actions of the Collector and of the Board saying that there can be no explanation for the discovery of the hashish in the consignment shipped by M/s. Bee Emm (India) Exports except that the hashish too were packed at the point of shipment by the shippers. It is not feasible for anybody to place hashish at the transhipment point in London and New York. There would neither be the time nor the apportunity for the unpacking and repacking of so many packages. The report from the American Embassy conclusively show that the seizure was from this consignment. There can only be one person who could have shipped the hashish and that is the shipper of the goods in which the drug was concealed.
8. We have not been able to see any explanation for so much delay in processing this case. The New Delhi Customs received reports about the seizure of the hashish in U.S.A. in the first quarter of 1973. Till the end of 1978 they did nothing beyond taking some statements from Mr.
Mehra in April 1973, after that they seem to have forgotten the matter.
The adjudication of the Collector itself throws no light on this. Nor does it appear there was any particular impediment to the proceedings.
No fresh evidence appears to have been filed nor did the Customs make any attempt to obtain further evidence at least we are not told that there was any such attempt. If the evidence was as good as the Collector thought the adjudication should have been completed in a more reasonable time than this. But we come back again to the gap of 6 years ; if we include the adjudication time, it would be a gap of 8 years.
9. We are not satisfied that the inaction and silence of the Customs was because of impediments and difficulties in bringing the case to a conclusion. The message received from the U.S. Embassy show that the hashish was found with the consignment shipped by M/s. Bee Emm (India) Export. But significantly this sentence runs in the report "A review of the reports and documents collected during the investigation does not reveal any information which positively identifies the Indian exporter or which indicate shipper's knowledge of the contents". This is acknowledgement by the U.S. Agencies that even though the shippers of brass tells were known, there was no evidence to connect them with the hashish found concealed in the packages. We note that the Customs did not arrest Brij Mohan Mehra or prosecute him as they should have done, had they thought him to be the real culprit. The delay in processing this case lead us to doubt whether the Customs themselves really believed in their own case. We do not find the evidence enough to justify the conclusion that Brij Mohan was the shipper of the hashish.
10. We accordingly set aside the Collector's order and allow the appeals of both M/s. Bee Emm (India) Exports and Shri Brij Mohan Mehra.