John Wesley Peters Vs. Commissioner of Customs and C. Ex. - Court Judgment

Excerpt:
1. the appeal is directed against the impugned order captioned above passed by the commissioner of customs and central excise, goa, by which penalty of rs. 15,000/- has been imposed on the appellant under section 112 of the customs act, 1962 and the swaraj mazda pick-up van belonging to the appellant has been confiscated under section 115(2) of the customs act, 1962 as having been used in the transport of 75 silver ingots seized from the vehicle on 12-3-1990 valued at rs. 1,70,61,971 mv.2. the learned counsel for the appellant shri s.v. marwadi submitted that the appellant has been penalised on the ground that he was not available immediately after the seizure of the silver from the vehicle and this fact itself cannot be conclusive for penalising the appellant.the learned counsel referred to the appellant's defense that the vehicle was given in charge of a person called prakash to whom the appellant used to entrust the vehicle and at the material time when the seizure was made the appellant himself was away at bangalore and he has also lodged a complaint with the police regarding the fact that the vehicles was missing. it was pleaded that the opportunity of cross-examination of panch witnesses was not given to the appellant and if the opportunity had been given he would have been in a position to prove that the cavities in vehicle was created only for carrying perishable goods.3. shri s.v. singh, the ld. dr submitted that the fact remains that contraband silver ingots valued at over rs. 1 crore have been seized from the cavity of the vehicle belonging to the appellant. the commissioner has clearly brought out the improbability of the appellant's claim that the cavity was used for carrying perishable goods. the person called prakash is apparently the person known to the appellant and no details of the where abouts of the person was given nor as the appellant produced the person in support of the case. the appellant further has not denied the fact that the vehicle did have a cavity from which the silver was recovered. further the conduct of the appellant in not responding to the summons of the department after the seizure is also pointing to his guilty mind. the complaint regarding missing vehicle was given about a month after seizure.4. we have carefully considered the submissions. we find that admittedly the contraband silver of substantial value has been recovered from a cavity in the vehicle belonging to the appellant. the fact that the silver was so recovered is also brought out in the evidence given by one of the panch witnesses during the cross-examination before the adjudicating authority. the appellant has also owned the fact that the vehicle did have the cavity. we find that in the impugned order the commissioner has brought out the improbability of the appellant's claim that the cavity was created for carrying perishable goods. the commissioner has observed that the claim that cavity was made for perishable goods is unbelievable as the cavity is only 6" deep and no perishable goods can be contained and preserved in a cavity of this nature. it was further found by the commissioner that it is not air-conditioned and storage of any perishable goods will only accelerate the process of deterioration. in these circumstances the commissioner has probabilised the fact that the carriage of the goods in the vehicle could not have been without the knowledge of the appellant. the appellant had named shri prakash as the person to whom the vehicle used to be given from time to time. it is not seen how far the details about this person was provided to their investigation, and that mr. prakash is appellant's witness, and the appellant should have made efforts to produce him before the adjudicating authority. in this context the confiscation of the vehicle under section 115 of the customs act, 1962 for having been used in the transport of contraband and penalty on the appellant under section 112 are sustainable. the quantum of the fine at rs. 30,000/- in lieu of the confiscation of the vehicle and rs. 15,000/- on the appellant are very reasonable considering the value of the contraband. we see no reason to interfere with the impugned order so far as the appellant is concerned. the appeal is rejected.

Judgment:
1. The appeal is directed against the impugned order captioned above passed by the Commissioner of Customs and Central Excise, Goa, by which penalty of Rs. 15,000/- has been imposed on the appellant under Section 112 of the Customs Act, 1962 and the Swaraj Mazda pick-up van belonging to the appellant has been confiscated under Section 115(2) of the Customs Act, 1962 as having been used in the transport of 75 silver ingots seized from the vehicle on 12-3-1990 valued at Rs. 1,70,61,971 MV.2. The learned Counsel for the appellant Shri S.V. Marwadi submitted that the appellant has been penalised on the ground that he was not available immediately after the seizure of the silver from the vehicle and this fact itself cannot be conclusive for penalising the appellant.

The learned Counsel referred to the appellant's defense that the vehicle was given in charge of a person called Prakash to whom the appellant used to entrust the vehicle and at the material time when the seizure was made the appellant himself was away at Bangalore and he has also lodged a complaint with the Police regarding the fact that the vehicles was missing. It was pleaded that the opportunity of cross-examination of panch witnesses was not given to the appellant and if the opportunity had been given he would have been in a position to prove that the cavities in vehicle was created only for carrying perishable goods.

3. Shri S.V. Singh, the ld. DR submitted that the fact remains that contraband silver ingots valued at over Rs. 1 crore have been seized from the cavity of the vehicle belonging to the appellant. The Commissioner has clearly brought out the improbability of the appellant's claim that the cavity was used for carrying perishable goods. The person called Prakash is apparently the person known to the appellant and no details of the where abouts of the person was given nor as the appellant produced the person in support of the case. The appellant further has not denied the fact that the vehicle did have a cavity from which the silver was recovered. Further the conduct of the appellant in not responding to the summons of the department after the seizure is also pointing to his guilty mind. The complaint regarding missing vehicle was given about a month after seizure.

4. We have carefully considered the submissions. We find that admittedly the contraband silver of substantial value has been recovered from a cavity in the vehicle belonging to the appellant. The fact that the silver was so recovered is also brought out in the evidence given by one of the panch witnesses during the cross-examination before the adjudicating authority. The appellant has also owned the fact that the vehicle did have the cavity. We find that in the impugned order the Commissioner has brought out the improbability of the appellant's claim that the cavity was created for carrying perishable goods. The Commissioner has observed that the claim that cavity was made for perishable goods is unbelievable as the cavity is only 6" deep and no perishable goods can be contained and preserved in a cavity of this nature. It was further found by the Commissioner that it is not air-conditioned and storage of any perishable goods will only accelerate the process of deterioration. In these circumstances the Commissioner has probabilised the fact that the carriage of the goods in the vehicle could not have been without the knowledge of the appellant. The appellant had named Shri Prakash as the person to whom the vehicle used to be given from time to time. It is not seen how far the details about this person was provided to their investigation, and that Mr. Prakash is appellant's witness, and the appellant should have made efforts to produce him before the adjudicating authority. In this context the confiscation of the vehicle under Section 115 of the Customs Act, 1962 for having been used in the transport of contraband and penalty on the appellant under Section 112 are sustainable. The quantum of the fine at Rs. 30,000/- in lieu of the confiscation of the vehicle and Rs. 15,000/- on the appellant are very reasonable considering the value of the contraband. We see no reason to interfere with the impugned order so far as the appellant is concerned. The appeal is rejected.