Shri Dinesh Singh Vs. Cc

2. The relevant fact that arise for consideration are on 23/09/2003, Customs officers intercepted the jeep bearing registration No. U.P. 32 Z-4681 near Village Kathwalia while coming from Barhani side. On search of jeep before two independent witnesses, it was found that 165 Kgs. of Cardamom (Small) and 1680 numbers of ladies panties of foreign origin, packed in 5 bags was recovered. On the spot statement of the driver of the jeep was taken, in which he admitted that the goods were loaded near Barhni jungle which is near Indo-Nepal border on the instruction of one Shri Govind Ji. Subsequently, the officers recorded the statement of the appellant and the driver of the jeep. The officers seized the jeep in which offending goods were found. On completion of the investigation, the authorities issued a show cause notice to the appellant proposing to confiscate the jeep and also for imposition of penalty. The appellant resisted the show cause notice on the ground that the penalty imposable on him is incorrect and the confiscation of the conveyance is also not required as he is not aware of the contraband nature of the goods. Adjudicating authority did not accept the contention of the appellant and confiscated the seized goods with the option to redeem the same on payment of redemption fine and also imposed penalty on the current appellant along with other notices. On an appeal, the learned Commissioner (Appeal) also concurred with the findings of the adjudicating authority and upheld the order. None of the other noticees have filed appeal against the adjudication order.

3. The learned advocate appearing on behalf of the appellant submits that the penalty imposed on the appellant under Section 112 of the Customs Act and is not at all imposable for the reason that the ingredients which are required for imposition of penalty are not satisfied in this case. It is his submission and also draws my attention to the various statements recorded of the driver and the other persons, for the proposition that the current appellant being owner of the jeep was never in knowledge that the said vehicle was being used for transporting any contraband goods. As regards, the confiscation of the jeep under Section 115(2) of the Customs Act 1962, it is his submission that he had appointed one Shri Akbar Husain as the driver and he is not aware why Shri Vinod Kumar Soni was driving the vehicle at the time of interception and was not appointed by appellant.

It is his submission that even if it is considered that Shri Vinod Soni was incharge of the vehicle, it has not been proved by the Department that the goods which were seized were of smuggled nature and the driver was aware of the same. He relies upon the decisions of the Tribunal in the case of Jahed Mondal v. Commissioner of Customs (P), West Bengal as reported at 2002 (149) E.L.T. 319 (Tri. - Kolkata), , 2002 (149) E.L.T. 380 (Tri. - Kolkata), and 4. Learned DR on the other hand submits that the penalty imposed on the current appellant is justified in as much that the statements would indicate that the current appellant was aware of the contraband goods being loaded in his vehicle. He submits that the Commission and omission in the statements would indicate that the current appellant was in knowledge of the vehicle being used for illegal activities. He submits that the current appellant has not given any evidence regarding the vehicle being attached with some Nidhi Tour and Travels to indicate that he was not aware of the activities, which were alleged to be indulged, with his vehicle. As regards the penalty, it is his submission that the current appellant was very much covered as per order provisions of Section 112(b) of the Customs Act, 1962.

5. Considered the submissions made at length by both sides and perused records. It is clear from the record that the offending goods of foreign origin were loaded in the vehicle near the Barhni jungle. The said jungle is near the Indo-Nepal border. It is also recorded in the statement of the driver that the said goods were loaded by one Shri Govind Ji, who is a resident of Nepal and no proper documents were given when the same were loaded in the vehicle. It is beyond anybody's imagination that the vehicle which is loaded with the goods at the outskirts of Barhni jungle and that also near the Indo-Nepal border, could not considered as illegal or contraband goods. It was for the driver of the vehicle during the relevant time to ask for and demand the documents which was not done by him. It is an admitted fact that Shri Vinod Soni was driving the vehicle during the relevant time that is to say he was In-charge of the conveyance. In the absence of any evidence that the seized goods were in licit possession of the driver of the conveyance in which the seized goods was transported, is liable to be confiscated and will fall within the ambit of provisions of Section 115(2) of the Customs Act 1962. Provisions of Section 115(2) read as under: Any conveyance or animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation, unless the owner of the conveyance or animal proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance or animal.

Provided that where any such conveyance is used for the carriage of goods or passengers for hire, the owner of any conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine not exceeding the market price of the goods which are sought to be smuggled or the smuggled goods, as the case may be.

Explanation - In this section, "market price" means market price at the date when the goods are seized.

6. In this case, the current appellant has submitted that the confiscation of the vehicle under Section 115(2) is not correct. To my mind, the vehicle was given by current appellant to the driver Shri Akbar Husain who in turn appointed the driver Vinod Soni to claimant the vehicle. It is clear from the records that Vinod Soni loaded the vehicle with contraband goods, which would indicate that the goods were not procured locally as none came forward claiming ownership. Another argument of the appellant that the goods are 165 Kgs. of Cardamom (Small) and 1680 numbers of ladies panties and were available in the local market, cannot be accepted for the fact that the vehicle was loaded with the goods near the Indo-Nepal border and it is not brought out, there being existence of a market at that place. In the absence of any documents to prove that the goods loaded were not contraband and also from the fact that nobody claimed ownership of the goods, would indicate, there was something amiss. As such the said confiscation of the vehicle under Section 115(2) is correct and there is no need for interference as regards the confiscation.

7. As regards, the penalty imposed on the current appellant under Section 112(b) of the Customs Act, 1962, it is very clear from the records that the said provisions cannot be made applicable to the current appellant. It is on record that the driver Shri Vinod Soni/ Shri Akbar Husain had indicated that the current appellant was not aware of the vehicle being used for ferrying the contraband goods from one place to another. In the absence of any direct evidence, it would indicate that the current appellant had no knowledge that the conveyance was used for ferrying goods of smuggled nature and that they are liable for confiscation under Section 111 of Customs Act, 1962 under the circumstances the appellant cannot be visited with penalty under Section 112(b) of the Customs Act, 1962.

8. Accordingly, the penalty imposed on the current appellant under Section 112 of the Customs Act is liable to be set aside and I do so.

As regards, the redemption fine imposed on the confiscation of the vehicle, I find that it is excessive and the same is reduced to Rs. 20,000/-.

9. Accordingly, the appeal is allowed partly and impugned order is modified as indicated in the above paragraphs.