Full Judgment
2. After further investigation show cause notice dated 18-7-1980 was issued to the appellant as well as Shri Rattan Singh and Jaswinder Singh. Adjudication followed resulting in order dated 16-6-83 under which the Additional Collector confiscated the seized goods and also the suitcase and further imposed a penalty of Rs. 20,000/- on the appellant, dropping action against the other two persons in the absence of acceptable evidence. It is against the said order that this appeal has been preferred.
3. We have heard Shri Harbans Singh Advocate for the appellants and Smt. Nisha Chaturvedi for the department.
4. The charges made against the appellant under the show cause notice are that he had, without valid licence therefor, imported the seized articles which were therefore liable for confiscation under Section 111(d) of the Customs Act and that he had made no declaration in respect of such articles as required under Section 77 of the Customs Act for which reason also the goods were liable for confiscation under Section 111(1) of the Customs Act and that since the appellant had thus imported the goods illegally and had also not declared them as mentioned earlier he rendered himself liable for penal action under Section 112 of the Customs Act. It is these charges that had been held established under the impugned order.
5. Shri Harbans Singh contends that the provisions of Section 77 of the Customs Act are not attracted to the facts of the case and hence the conclusion as to contravention of Section 77 by the appellant was not justified. Section 77 reads as follows : "The owner of any baggage shall for the purpose of clearing it made a declaration of its contents to the proper officer" Shri Harbans Singh contends that the appellant was neither the owner of the goods nor did he intend to clear the same and for both these reasons the provisions of Section 77 are not attracted. The contention of Smt. Chaturvedi is that for the purpose of the said Section the appellant would be the owner since it is he who had imported the goods by bringing the same with him from Hong Kong and that his alleged intention to abandon the goods would be not relevant.
6. Though in the grounds of appeal it is mentioned that the statements recorded from the appellant were not voluntary but had been dictated by the officers themselves no such argument was advanced by Shri Harbans Singh. We may therefore proceed on the basis that the statements were voluntary. Though there is a difference in the two statements as to the name of the person who had entrusted the attache case to the appellant, to be carried as part of his baggage from Hong Kong to New Delhi, it is admitted in both statements that the appellant received the said attache case from another person and promised to carry the same as part of his baggage to New Delhi and that he did so in return for favours received from that person at Hong Kong. It is therefore clear that even taking the said statements at face value, and giving the benefit to the appellant of the statement therein that the appellant was not aware of the contents thereof, the statements establish it beyond doubt that the appellant was the carrier thereof and had the intention to bring the goods to New Delhi in order that the goods may subsequently be removed from the customs hall and taken into town. In the circumstances the mere fact that the appellant had mentioned in his statements that he himself intended to abandon the goods in the customs hall would not establish that the intention of the appellant was not to import the goods into India. It is not as if the appellant intended to abandon title to the goods and entrust the goods into the custody of the customs authorities to be dealt with by them on the basis that the lawful owner thereof had abandoned his claim to title, leaving it to the customs authorities to deal with the goods in any proper manner thereafter. Hence the contention of Shri Harbans Singh as if the provisions of Section 23(2) of the Customs Act are attracted to the present case is not correct. The said provision would apply in cases where the owner of the goods imported voluntarily relinquishes his title thereto in order to enable customs authorities thereafter to take possession thereof and deal with the same in any proper manner. The provisions of the said Section would not apply to goods like the present where the appellant, after having brought the goods into the customs hall, then, according to him, clandestinely left the goods unclaimed and, initially, even disclaimed any connection therewith.
7. Hence in the present case the facts established make out a case of an attempt on the part of the appellant to illegally import into India the seized goods without any valid licence for such import and also having failed to make a proper declaration thereof as required under Section 77. Hence the conclusion of the Additional Collector that for both the above reasons the seized goods became liable for confiscation, and the appellant became liable for imposition of penalty in that connection, is correct. Nor could the quantum of penalty levied be said to be high taking into consideration the fact that the appellant has studied upto post graduate level and was employed in a Commercial bank at the relevant time and willingly undertook to carry goods on behalf of another to India from a foreign country without even taking care (according to himself) to even enquire about the nature of the said goods. He in fact willingly on his own admission became an instrument for smuggling of goods seized. The appeal is accordingly dismissed.