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9. The Import Export Code No. 0494008644 allotted to M/s. Sargam Enterprises, was found to have been cancelled by JDGFT vide their circular No. 5/IE/94 issued in November, 1994 on the ground that the firm was not existing. It is pertinent to point out here that as on the date of filing of the Bill of Entry No. 56720 (dated 21-12-94) or even as on 12-12-94 i.e. the date of Bill of Lading the firm has no existence and therefore the importation is prima facie invalid in the absence of valid Import Export Code Number.

(iii) The goods viz., bearings of market value Rs. 1,194 Crores, which were not declared and smuggled in the guise of gambier require a valid import licence; in the absence of the same, they are liable to confiscation under Section 111(d) of the Customs Act, 1962 read with Section 3(3) of the Foreign Trade (Development and Regulation) Act, 1992. Further, the importing firm has no valid Import Export Code number as on the date of importation. Therefore, the goods viz., the bearings and the declared item gambier also are liable to confiscation under Section 111(d) of the Customs Act 1962 read with Section 7 of Foreign Trade (Development and Regulation) Act, 1992.

78. As to the clearing agent it is seen that the charge as framed in the show cause notice as seen from para 35 of the impugned order is in the following terms:

"The persons, namely, S/Shri Ishwarlal C. Surana, Raichand G. Mardia, D. Kannan, Kamlesh M. Sanghvi and S. Venkatesh have planned, conspired and arranged to clear the bearings by way of smuggling without payment of huge duty."

The conspiracy as alleged on the part of the clearing agent along with other two has not been established as such in the finding portion of the order. The planning of import by three and thereafter arranging import by them and arrangements made by three together are not discussed by the ld. lower authority. What emerges from the facts as narrated in the order-in-original so far as the role of clearing agent is concerned are that he received the papers for clearance from Shri Kamlesh Sanghvi and filed the same. The Bill of Entry was accepted when the particulars were fed into the computer and thereafter it was processed and the duty was paid and examination of goods ordered by the authorities. The goods were examined in the presence of the representative of the clearing agent. The department had the intelligence about the smuggling of the goods. No incriminating documents connecting the clearing agent with the importation as such have been recovered. The circumstance highlighted against the appellant is that he filed the bill of entry for a fictitious firm whose code given by the import and export authorities had been cancelled. The plea of the appellants is that he had cleared the consignments for the said firm earlier and he had no information about the cancellation of the code number as above. In any case the computer had accepted the Bill of Entry despite the cancellation of the import and export number. I observe that the Customs authorities would have been informed about the cancellation. It is not the case of the department that a public notice regarding cancellation had been issued and the clearing agent was expected to know about this. The computer check when Bill of Entry data was fed in the Custom House also did not throw up any discrepancy regarding cancellation. In this background it is not understandable how any deliberateness in the matter on the part of the clearing agent can be attributed. He knew Shri Surana and Mardia by reason of the earlier clearing work he had done for them. No falsification of any information filed in the bill of entry has been attributed to him. The Bill of Entry was signed by Shri Soma-sundaram who turned out to be Shri Kamlesh. There is no evidence or any attribution that he knew that Bill of Entry was signed by a benami. He came on record about Shri Sanghvi although after first pointing a finger at Shri Gulab-chand as the person who brought the papers for clearance to him. He even helped the department by bringing in the names of Shri Surana and Mardia even though his statement about them has not been found reliable evidence for the reasons set out in earlier paragraph. There is nothing on record to show that he did or omitted to do anything deliberately which would render the goods liable to confiscation to attract the provisions of Section 112 of Customs Act, 1962. There is no evidence to support the allegation that he knew that contraband goods were concealed in the consignment. He had cleared earlier consignments for the said firm and the plea is that the papers were processed in the normal course. He can be said to be guilty of first pointing out the wrong person who handed over the papers or having been slow in coming forward with all the details. However it is seen the investigating officers also asked him question, which elicited only limited information and they did not elicit the details about certain aspects as were discussed in earlier paras in the discussion of the evidence in the case of the other two persons. This cannot lead to adverse inference for the purpose of levy of personal penalty for reason of abetment under Section 112. The case law cited by the ld. Appellant's, Advocate is relevant. There is no attribution that for processing the clearance of the consignment, the appellant had been paid any disproportionate compensation for arranging the clearance. His connection with Shri Surana and Mardia has been shown to be a business relationship for reason for clearance work done for their firms in the past. It has been attributed by the ld. Commissioner that he had the knowledge of ownership of the goods. What has to be shown is that he had the knowledge of the importation of contraband and which has not been done. He does not inculpate himself. In the above view of the matter, I hold that benefit of doubt has to be given to the appellant.