SHRI DINESH SINGH Vs. CC

JUDGEMENT

(1.) THIS appeal is directed against order in appeal dated 26th May 2005 that upheld the order in original vide which the Jeep/conveyance was confiscated with an option to redeem the same on payment of redemption fine and also imposed penalty on the current appellant.

(2.) THE relevant fact that arise for consideration are on 23/09/2003, Customs officers intercepted the jeep bearing registration No. U.P. 32 Z -4681 near Village Kathwalia while coming from Barhani side. On search of jeep before two independent witnesses, it was found that 165 Kgs. of Cardamom (Small) and 1680 numbers of ladies panties of foreign origin, packed in 5 bags was recovered. On the spot statement of the driver of the jeep was taken, in which he admitted that the goods were loaded near Barhni jungle which is near Indo -Nepal border on the instruction of one Shri Govind Ji. Subsequently, the officers recorded the statement of the appellant and the driver of the jeep. The officers seized the jeep in which offending goods were found. On completion of the investigation, the authorities issued a show cause notice to the appellant proposing to confiscate the jeep and also for imposition of penalty. The appellant resisted the show cause notice on the ground that the penalty imposable on him is incorrect and the confiscation of the conveyance is also not required as he is not aware of the contraband nature of the goods. Adjudicating authority did not accept the contention of the appellant and confiscated the seized goods with the option to redeem the same on payment of redemption fine and also imposed penalty on the current appellant along with other notices. On an appeal, the learned Commissioner (Appeal) also concurred with the findings of the adjudicating authority and upheld the order. None of the other noticees have filed appeal against the adjudication order.

(3.) THE learned advocate appearing on behalf of the appellant submits that the penalty imposed on the appellant under Section 112 of the Customs Act and is not at all imposable for the reason that the ingredients which are required for imposition of penalty are not satisfied in this case. It is his submission and also draws my attention to the various statements recorded of the driver and the other persons, for the proposition that the current appellant being owner of the jeep was never in knowledge that the said vehicle was being used for transporting any contraband goods. As regards, the confiscation of the jeep under Section 115(2) of the Customs Act 1962, it is his submission that he had appointed one Shri Akbar Husain as the driver and he is not aware why Shri Vinod Kumar Soni was driving the vehicle at the time of interception and was not appointed by appellant. It is his submission that even if it is considered that Shri Vinod Soni was incharge of the vehicle, it has not been proved by the Department that the goods which were seized were of smuggled nature and the driver was aware of the same. He relies upon the decisions of the Tribunal in the case of Jahed Mondal v. Commissioner of Customs (P), West Bengal as reported at 2002 (149) E.L.T. 319 (Tri. - Kolkata), , 2002 (149) E.L.T. 380 (Tri. - Kolkata), and .