1. In this appeal the appellant has challenged the correctness and legality of the order in appeal passed by the learned Additional Collector of Customs, Muzaffarpur in adjudication Order No. 43-Cus/83 dated 15-6-1983 by which he has ordered confiscation of seized molasses and drums collectively valued at Rs. 26,000/- under Section 113 of the Customs Act, and penalty of Rs. 25,000/- under Section 114 of the Customs Act.
2. The brief facts of the case as recorded in the adjudication order is as follows.
3. That on 9-4-1982, the Customs Divisional Preventive Party Lucknow intercepted truck No. USH 2213 near 'no man's land' on Murtiha Gularia Road and recovered from the said truck 40 drums of molasses. The statement of the driver, Sri Nand Ram of cleaner Sri Nathoo, panchnama was drawn of the seized goods. Later the appellant's statement was recorded on 20-4-1982 under Section 108 of the Customs Act, 1962. The driver had stated that he had brought the said consignment from village Manjhawa and was carrying the same to the distillery of Mr. Lari situated in Gularia (Nepal). He further stated that the said molasses belonged to Sri Kalian, Contractor, who had purchased the same from M/s. Jai Durga Khandsari Udyog, village Manjhawa. The cleaner also admitted that the goods were being transported to Nepal. A show cause notice dated 31-7-1982 was issued by the Assistant Collector of Customs, Lucknow on the basis of the seizure of the goods, statements of the driver, cleaner and the appellant. The appellant sent a reply through his advocate on 12-5-1982, prior to the issue of the show cause notice, a reply dated 18-9-1982 under his hand in reply to show cause and filed his written brief on 12-4-1983 and a personal hearing was given on 14-4-1983; on which date the appellant, driver and cleaner appeared before the authorities. The appellant produced the affidavit dated 20-5-1982 of the driver, cleaner and of labourers retracting their statement before the Preventive Officers on the date of seizure i.e., on 20-4-1982, along with his reply dated 18-9-1982. In the reply dated 12-5-1982 sent through the advocate the appellant denied the allegation of smuggling. In his reply to show cause dated 18-9-1982, the appellant submitted that the goods were transported to M/s. Nabi Bux & Sons Zarda Factory, Hazipur, Bahraich and the driver was carrying a letter of on M/s. Jai Durga Khandsari Udyog, Manjhawa, who were the consignee of the goods. The authorities had seized the letter from driver but had suppressed it. He submitted that there was no violation of Section 113 or 121 of the Act. However, it is observed that in the belated affidavits of the driver Sri Nand Ran and cleaner Sri Nathoo there is no mention of this letter excepting denying that the statements were voluntary. They have stated that they had gone to Mahinpurwa Bazar to collect diesel and had parked the vehicles and when they were taking tea, the officials had apprehended this part of the statement is not found in earlier statement of the driver, cleaner or the appellant.
4. A corrigendum show cause notice dated 26-6-1982 was issued wherein the value of molasses of 40 drums at Rs. 100/- each totalling Rs. 4000/- and the value of 40 empty drums at Rs. 25/- each, totalling Rs. 1000/- was shown.
The learned Collector taking into consideration the statements and materials before him passed the impugned order. The learned Collector had gone into the details of the statement of the driver, cleaner and also those of the five labourers who were in the truck, and taking into consideration the statement of the appellant sent through his advocate on 12-5-1982, and one sent by the appellant in his hand on 18-9-1982, and also the written brief submitted on 12-4-1983, came to the conclusion that the entire charges made out in the show cause notice were proved.
5. The appellant has made out the ground in the appeal that the statement the driver and the cleaner should not be taken into consideration as the same was obtained under duress and coercion by the Customs officials and the same stands retracted. They have further urged in the appeal that the goods were being transported to Khandsari Unit, namely, M/s. Nabi Bux & Sons Zarda Factory, Hazipur. The goods belonged to one Jay Durga Khandsari Udyog. They submitted there was a letter of the said owner of the goods with the truck driver which were seized but not mentioned in the panchnama. The appellant's contention is that the goods were being transported within India and there was no contravention of any of the Sections of the Customs Act, and the learned Collector had committed an error in relying upon the resiled statement of the driver and the cleaner.
6. Sri Bajoria, appearing for the appellant, vehemently submitted that the learned Collector had committed an error in passing the impugned order and penalty of Rs. 25,000/- when the value of the goods as per the corrigendum show cause notice was only Rs. 5,000/- including the value of the drums. He further submitted that the investigating authorities having failed to record the statement of the owner of the goods have committed serious illegality. He submitted that the seizure of the lorry was not done on 'no man's land' but it was done in Mahinpurwa Bazar within the limits of Indian border. He submitted that there is total non-application of mind by the Collector inasmuch as the Collector had totally relied upon the earlier statements of the driver and the cleaner.
7. Sri M.N. Biswas, SDR, appearing for the respondent, supported the order of the Collector. He submitted that the appellant in his reply dated 12-5-1982 has not mentioned about all these grounds urged during the course of argument as well as raised susequently before the Collector. Sri Riswas further submitted that the driver and the cleaner had only given affidavit only on 20-5-1982 which was not produced by the appellant till 18-9-1982. These affidavits were submitted along with the reply to the show cause notice on 18-9-1982 after a period of five months and hence the learned Collector was right in rejecting such a retracted statement. He further submitted that even in the affidavits of the said driver and the cleaner, there was no mention of any letter being carried by the driver on behalf of M/s. Jay Durga Khandsari Udyog to M/s. Nabi Bux & Sons. He pointed out several discrepancies, contradictions in the statements of the appellant submitted in his reply dated 12-5-1982,18-9-1982 and written briefs dated 12-4- 1983.
8. We have heard both the sides carefully and perused the appeal memo, statements of the appellants, various statements and also scrutinized the impugned order. The question that arise for our consideration is as to whether the goods were being smuggled to Nepal and whether the appellant had committed contraventions of the various sections of the Customs Act, and whether the redemption fine of Rs. 25,000/- and penalty of Rs. 25,000/- on the appellant was justified.
9. On a very careful consideration of all the materials before us one point is clear that the retracted statement of the driver and the cleaner was brought before the learned Collector only on 18-9-1982. The appellant has not explained as to why he has taken such a long time to file the retracted statement. He has not brought before the authorities any evidence to show that the goods belonged to M/s. Jay Durga Khandsari Udyog. Any goods transported in a lorry shall carry lorry receipt, titles of ownership of the goods and delivery challans. All these documents are very material to establish the case of the appellant, but the appellant has not chosen to adduce any evidence to prove his case. He has also not produced the affidavit of the owner of the goods or that of M/s. Nabi Bux & Sons to whom the said goods were to have reached. The appellant has also not produced any affidavit of the labourers who were in the truck to establish his case. The defence raised by the appellant does not find place in his first written submission made through his advocate on 12-5-1982. The driver in his affidavit, in which he is said to have retracted his statement, do not speak of carrying any letter to the concerned parties as submitted by the appellant. The appellant has not spoken of the lorry having been seized in the village while the driver was taking tea, and the lorry having gone there to collect diesel in his reply statement dated 12-5-1982 as well as in his reply to the show cause notice dated 18-2-1982.
10. After making a careful perusal of all the materials before us, we are unable to agree with the defence of the appellant. It is crystal clear that the appellant has tried to come out with this story at a very belated stage, and the learned Collector was justified in rejecting the entire defence of the appellant. We are also not inclined to accept the submissions of the appellant that the goods were not smuggled to Nepal in view of several contradictions. The charge that the lorry was seized with the impugned goods at 'no mean's land' stands proved. We find that the charge as made out against the appellant in the show cause notice stands proved.
11. The other question which is before us is as to what extent of redemption fine and penalty are to be imposed on the appellant. In the corrigendum show cause notice the value of the seized molasses and drums has been totalled at Rs. 5,000/-. The learned SDR fairly submitted that the learned Collector has committed an error in coming to the conclusion that the value of the goods were Rs. 26,000/- which presumably has been based on the show cause notice and the corrigendum show cause notice seems to have been not seen by the Collector. The submissions of Sri Bajoria to this extent has to be accepted. The redemption fine is, therefore, reduced to Rs. 5,000/- as per the value of the corrigendum show cause notice. The penalty imposed under Section 114 stands also reduced to Rs. 5,000/- (Five thousand). Keeping in view the value of the goods seized.
12. Sri Bajoria submitted that the penalty and redemption fine has already been paid. In the event of the appellant having deposited redemption fine and penalty, the balance amount shall be refunded to him within four months from the date of this order. With this modification, the reduction of redemption fine and penalty, as stated supra, the appeal stands dismissed.