ANJU DEVI Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) IN these two appeals, filed by Smt. Anju Devi and Shree Sanatan Dev Goswami, the common issue involved is whether the appeals filed by them against Order -in -Original No. 75/A and R/VS/97, dated 3 -10 -1997 passed by the Commissioner of Customs are maintainable under Section 129A of the Customs Act.

(2.) BRIEFLY stated the facts are that the officers of Directorate of Revenue Intelligence intercepted a Tata Mobile Van No. MP 09D 8093 on 30 -8 -1991 at Shahjahanpur Police Post; that the search of the said Van resulted in the recovery and seizure of 581 slabs of silver weighing 702.780 kgs. and valued at Rs. 47,08,626/ - from five specially built secret cavities; that Rajendra Kumar, driver, in his statement dated 31 -8 -91 deposed that one Kanchan Aggarwal of Mathura appointed him as his driver; that Kanchan Aggarwal purchased the said Mobile Van which was registered in the name of one Manoj Kumar which was later on transferred in the name of Dinesh Aggarwal of Indore; that one Dinesh Kumar of Mathura took the Mobile Van to one garage and got the cavities made; that before 15th August he brought Silver weighing about 700 kg. approx. from Beawar alongwith Dinesh and delivered the same to Kanchan Aggarwal; that in the present trip he went to Beawar from Mathura alongwith one Bharat and met one Rangwala near Railway station as per the direction of Kanchan Aggarwal; that Rangwala took away the vehicle, returned after about six hours and told them that he had concealed smuggled silver in the cavities made in the vehicle which is to be handed over to Kanchan at New Delhi. Shri Bharat also deposed in his statement dated 31 -8 -91 that he is an employee of Kanchan Aggarwal and he went to Beawar as per his direction for helping Rajinder in bringing smuggled silver. A show cause notice dated 7 -2 -92 was issued to Kanchan Aggarwal, Rajinder Kumar, Bharat and/or any other person claiming to be the owner of, or interested in, the seized silver for confiscating the silver and Mobile Van and for imposing penalty. The Commissioner under the impugned Order has confiscated the silver and Tata Mobile Van and imposed penalty of Rs. 15 lakhs on Kanchan Aggarwal and Rs. 2 lakhs each on Ra -jender Kumar and Bharat.

(3.) SHRI P.K. Mittal, learned Advocate, submitted that silver which has been confiscated by the Commissioner under the impugned order belong to Thakum Shri Madan Mohanji Trust Board, Brindawan; that the temple trust Board at its meeting held on 28 -4 -1990 had authorized the Appellant No. 2 to get all the old and broken utensils lying in the toshkhana melted so that new items may be got manufactured; that accordingly Kanchan Lal Aggarwal, saraf, was given the said work; that silver utensils, etc. got melted from one Mahesh Chander, silversmith on 12 -8 -91 in the temple premises itself and these were made into 581 slabs weighing 702.780 kgs.; that as nothing was heard from Shri Kanchan Lal Aggarwal for a long time, several letters were sent to him and a final notice dated 20 -1 -1992 was given to him; that Kanchan Lal Aggarwal informed the Trust that silver in question was seized by the DRI officers; that the Trust in its meeting on 15 -9 -93 decided to take legal action against Kanchan Lal Aggarwal; that thereafter the Temple Trust Board filed a criminal case against Kanchan Lal Aggarwal in the Court of 3rd Metropolitan Magistrate, Mathura which is still pending. The learned Advocate, further, submitted that a written claim dated 7 -9 -97 was filed before the Commissioner of Customs and their authorized advocate appeared also before the Commissioner; that all the facts were narrated in the said claim and the Commissioner was requested to release silver which belong to Temple Trust; that the Commissioner did not give full attention and consideration to the claim made by the Temple Trust and ordered absolute confiscation of the silver which is not correct; that it was incumbent on the part of the Commissioner to issue a show cause notice to the Appellants who had lodged the claim on silver as the owner. The learned Advocate also submitted that Tata Mobile Van belongs to the husband of Smt. Anju Devi, Appellant No. 1; that the request was followed by the Counsel's letter dated 29 -8 -1997; that the vehicle was purchased second -hand through the broker at Indore who might have supplied a wrong address to the R.T.O.; that merely on the basis of wrong address given for registration the Commissioner ought not to have rejected claim regarding the ownership of the vehicle; that the non -serving of the show cause notice on the pretext that the correct address was not available is unjust as the address of Dinesh Kumar Aggarwal could have been easily ascertained from Rajednder Kumar or Bharat The learned Advocate submitted that the confiscation of both vehicle and silver is without the authority of law. He relied upon the decision in the case of Shree Lekha Finance Co. Ltd. v. Collector of Customs - 1993 (66) E.L.T. 78 (Calcutta) wherein it was held that in absence of show cause notice issued to the owner of the vehicle the department is not entitled to proceed against the company and the vehicle must be returned by the Customs authorities. Reliance has been placed also on the decision in the case of H.A. Abdul Mustafa and Co. v. Additional Commissioner of Customs - 1986 (25) E.L.T. 718 (Tribunal) wherein it has been held that confiscation of vehicle is justified when conveyance is used as a means of transport in smuggling of goods with the collusion of person in charge thereof. The learned Advocate also relied upon the decision in the case of Yusuf Kadar v. Collector of Customs (Preventive), 1988 (38) E.L.T. 186 (Tribunal) wherein it was held that service of notice on the wife who is neither an agent nor having a Power of Attorney on behalf of her husband and affixing of notice on the notice board of the Custom House are not treatable as service of notice under Section 153(a) of the Customs Act.