Commr. of Cus. (Prev.), West Vs. Bijoy Sankar Sadani - Court Judgment

Excerpt:
1. the revenue has filed the present appeal against the order of the commissioner of customs (appeals) vide which he has set aside the confiscation of the truck with a redemption fine of rs. 10,000.00 (rupees ten thousand) on the ground that the show cause notice was not issued to the finance company from whom the assessee had purchased the truck under the hire purchase scheme. the relevant paragraph of the order of the commissioner (appeals) reads as follows :- "i have carefully gone through the case records and the submission of the appellant made in the appeal petitions as well during personal hearing through the learned consultant who had put forth the several decisions of case laws (judgment) in support of the prayer made in the appeal petition. i find that the vehicle was purchased by the appellant on hire purchase scheme and only 23 instalments were paid out of 36 instalments. it is seen from the decision that the vehicle when purchased on hire purchase scheme, show cause notice to the owner of the vehicle (financier) is necessary for the purpose of confiscation as in 1993 (66) e.l.t. 78 (cal.): srilekha finance co. ltd. v. collector of customs. it is seen that no show cause notice was issued to the financier. therefore, confiscation of the truck is not justified in the circumstances, without notifying the financier firm. moreover, the carrier truck had been released provisionally on payment of cash security deposit and bond of rs. 2 lakh and is not physically available. moreover, wrongful employment of the carrier truck is not established vide police diary and panchayat certificate. as the learned consultant on behalf of the appellant had cited several case laws in support of their contention and which appear to be relevant in the present case, i am inclined to allow the appeal as prayed for by the appellant i.e. rs. 10,000.00 of cash security deposit is ordered to be released to the appellant." 2. after hearing both sides duly represented by shri t.k. kar, learned s.d.r. and shri k. chatterjee, learned consultant for the respondent, i find that no infirmity in the order passed by the commissioner (appeals). the revenue in their grounds of appeal have not contended that under the hire purchase scheme, the financier remains the owner of the vehicle till the last instalment is paid. as such, as rightly held by the commissioner (appeals), the show cause notice was required to be issued to the financier. inasmuch as the same has not been issued, the confiscation of the truck belonging to him, is not justified.accordingly, i reject the appeal filed by the revenue.

Judgment:
1. The Revenue has filed the present appeal against the order of the Commissioner of Customs (Appeals) vide which he has set aside the confiscation of the Truck with a redemption fine of Rs. 10,000.00 (Rupees ten thousand) on the ground that the show cause notice was not issued to the Finance Company from whom the assessee had purchased the truck under the Hire Purchase Scheme. The relevant paragraph of the order of the Commissioner (Appeals) reads as follows :- "I have carefully gone through the case records and the submission of the appellant made in the appeal petitions as well during personal hearing through the learned Consultant who had put forth the several decisions of case laws (Judgment) in support of the prayer made in the appeal petition. I find that the vehicle was purchased by the appellant on Hire Purchase Scheme and only 23 instalments were paid out of 36 instalments. It is seen from the decision that the vehicle when purchased on Hire Purchase Scheme, show cause notice to the owner of the vehicle (Financier) is necessary for the purpose of confiscation as in 1993 (66) E.L.T. 78 (Cal.): Srilekha Finance Co. Ltd. v. Collector of Customs. It is seen that no show cause notice was issued to the Financier.

Therefore, confiscation of the truck is not justified in the circumstances, without notifying the financier firm. Moreover, the Carrier Truck had been released provisionally on payment of Cash Security Deposit and Bond of Rs. 2 lakh and is not physically available. Moreover, wrongful employment of the carrier truck is not established vide police diary and panchayat certificate.

As the learned Consultant on behalf of the appellant had cited several case laws in support of their contention and which appear to be relevant in the present case, I am inclined to allow the appeal as prayed for by the appellant i.e. Rs. 10,000.00 of Cash Security Deposit is ordered to be released to the appellant." 2. After hearing both sides duly represented by Shri T.K. Kar, learned S.D.R. and Shri K. Chatterjee, learned Consultant for the respondent, I find that no infirmity in the order passed by the Commissioner (Appeals). The Revenue in their grounds of appeal have not contended that under the Hire Purchase Scheme, the Financier remains the owner of the vehicle till the last instalment is paid. As such, as rightly held by the Commissioner (Appeals), the show cause notice was required to be issued to the Financier. Inasmuch as the same has not been issued, the confiscation of the truck belonging to him, is not justified.

Accordingly, I reject the appeal filed by the Revenue.