Judgment:
1. A short question that arises for consideration in this appeal is as to whether mini lorry bearing Registration No. TN 59 F 4053 with its accessories valued at Rs. 3,51,500/- which was used as a mean of transport in the carriage of contraband goods is liable for absolute confiscation under Section 115(2) of the Customs Act, 1962 2. Despite the notice issued to the appellants of the hearing of this appeal, they have not come to argue the matter, hence, this appeal is taken up for decision on merits. The appellant was a Financier of the lorry in question. The proceedings against the appellant/financier has been dropped. Their contention is that the vehicle cannot be absolutely confiscated and it ought to have been released on payment of fine in terms of the proviso to Section 115(2) read with Section 125 of the Customs Act, 1962. It is stated in the grounds of appeal that this provisions have not been examined and therefore, absolute confiscation is not in terms of law. They also rely on the Tribunal decision rendered in the case of Vijayakumar v. C.C, reported in 1995 (78) E.L.T. 62 (T) and in the case of Skpak Service Specialists Ltd. and Anr. v. C.C reported in 2002 (149) E.L.T. 1464 (Tribunal) = 1997 (72) ECR 821 (T).
3. I have heard Shri A. Jayachandran, ld. DR for the Revenue who submits that the Driver of the mini lorry had given a statement that he was aware of the mini lorry being used for the purpose of smuggling the foreign marked gold biscuits and absolute confiscation of the vehicle used for smuggling is justified. However, on being pointed out to the provision of law, as to why the matter should not be remanded for re-consideration with regard to the release of the vehicle on payment of fine, the ld. DR submitted that the matter can be sent for de novo to consider the provisions cited by the appellants and also the Tribunal decisions. Ld. DR has no objection for remand of the matter.
4. On a careful consideration, I notice that the appellants' plea is that the mini lorry cannot be absolutely confiscated in view of their having interest therein and that the Registration being in their name is justified one. The matter is required to go back to the Commissioner of Customs and Central Excise, Trichy to reconsider the appellants' prayer that the terms of the proviso to Section 115(2) read with Section 125 of the Customs Act and the decisions cited above, the mini lorry in question is required to be released on appropriate payment of fine. The Commissioner, after due consideration, shall release the vehicle on fixing appropriate fine after taking into consideration all the relevant factors and after granting hearing to the appellants.
Thus, the appeal is remanded for de novo consideration on this point.