Judgment:
Per: B.S.V. Murthy, Member (Technical)
1. This is a case of seizure of 575 gold bars. In the process of seizure of gold bars, the departmental officer had also seized three vehicles in addition to the vehicle, which had been used for transporting 575 gold bars. Three vehicles were viz., one Mahindra and Mahindra Commander vehicle, one Mahindra and Mahindra Armada vehicle and one Maruti 800 Car. The vehicles were seized since they were found parked in the premises along with the other vehicle, which had been used for transportation of gold bars. Further, the officers also found that all the three vehicles had special cavities made for the purpose of transportation on smuggled goods. Further, the officers also seized Indian currency of Rs.2.5 lakhs from one Shri.Suresh Bhanji Patel.
2. In the impugned order, the Commissioner had observed in paragraph 154 that the currency was brought to the premises during the time of visit of the officers was liable to confiscation under Section 121 of the Customs Act, 1962 but in the operational portion of the order, he omitted to confiscate the currency. As regards the three vehicles, which were seized for the reason that they had special cavities made for transporting smuggled goods, the Commissioner held that the same were not liable to confiscation since the department had not produced any evidence to show that smuggled goods were actually transported by these vehicles.
3. As regards the currency of Rs.2.5 lakhs, we find that Shri Babubhai Jain and Shri Suresh Bhanji Patel had filed appeal against the confiscation of the currency and this Tribunal vide order No.C-II/255-258/WZB/03 dated 15/02/2003 has already decided that the confiscation of currency was not in order and appeals were allowed and the impugned order was set aside. Therefore, the stay application filed by the Revenue against the confiscation of currency by the Commissioner becomes infructuous and accordingly is rejected.
4. As regards the three vehicles, no doubt the Commissioner did not confiscate these vehicles. He has also held that they are not liable to confiscation. We find that according to Section115 (1) (a) of Customs Act, 1962, vehicles specially constructed for the purpose of smuggling of goods can be confiscated if they are found in the Customs area. Otherwise, the department would have to prove that the vehicles have been used for smuggling. Therefore, we cannot really find fault in the order of the Commissioner. Nevertheless the fact remains that according to the investigation, in respect of one vehicle, the owner in her statement dated 24/03/2000 has stated that she did not know anything about these vehicles and no one in her family ever owned any vehicle. She also stated that she did not know any person by name Shri Imtiyaz Iqbal Pothiawala, who was the main party responsible for smuggling according to the department in this case. Summons sent to owner of another vehicle Mahindra and Mahindra Armada was returned by the postal authorities with remarks not known . The address was also found to be bogus and no such person was found reside in such address. In respect of Maruti car also, it was found that Shri Javed Khan, in whose name the vehicle was found registered also could not be traced and the Secretary of the Society clarified that he had never seen Shri Javed Khan. From the submissions made in the Appeal by the department itself, the conclusion that emerges is that there is no owner for this seized vehicle. Therefore, the department could have taken steps to issue notices to the owners and if there was no response, the vehicles could have been disposed of. Any way, it is not our concern to advise the department. We do not find any justification to set aside the Commissioner order as regards the confiscation of vehicles. In the result, we find that the stay applications were to be rejected. In fact, we do not find any reason to keep the appeals pending, in view of the observations made by us. Accordingly, we reject the appeals also.