TRIVENDRA PRASAD MISHRA Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THESE three appeals are filed by the respective appellants against the order of the Commissioner (Appeals).

(2.) THE preventive officers of the customs division on a information intercepted truck No. UP -78 -B/3195 on 17 -11 -2000 near Safedabad Railway crossing, Barabanki. The truck was loaded with copper scrap weighing 3900 Kgs. which was concealed under plastic scrap and iron scrap weighing 1425 Kgs. The truck along with its occupants and the goods was taken to Customs office where unloading was done and opinion of two traders dealing in copper scrap was taken who confirmed that copper scrap and wire which was found in the truck was of foreign origin. The occupants of the truck were interrogated and their statements were recorded. Shri Trivendra Prasad Mishra, Shri Mohan and Shri Vinod Tiwari were in the truck and they stated that copper scrap was imported from Nepal and were loaded in the truck near Mihipurwa Jungle and the same was concealed by iron and plastic scrap and they were taking it to Kanpur for sale. After investigation and issuance of show cause notice, the case was adjudicated by the Additional Commissioner of Customs who absolutely confiscated the copper scrap. He also confiscated the iron scrap used for concealing the copper scrap. The truck was also confiscated but allowed to be redeemed on a fine of Rs. 15,000/ -. Penalties of Rs. 15,000/ - each were imposed on Shri Trivendra Prasad Mishra and Shri Mohan who were owner of the copper scrap and Rs. 5,000/ - on Shri Vinod Tiwari who was driver of the truck. The appeals filed before the Commissioner (Appeals) by Shri Mohan and Shri Trivendra Prasad Mishra were rejected. No appeal was filed by Shri Vinod Tiwari. The appeal was filed by one Asgar Ali before the Commissioner (Appeals) claiming the ownership of the confiscated copper scrap and the appeal of Asgar Ali was rejected by the Commissioner (Appeals).

(3.) IT was argued by the learned Counsel for the appellants that show cause notice makes only a proposal for confiscation of seized goods. There is no proposal for imposition of penalty under Section 112 of the Customs Act. The seized copper scrap and wire were said to have been examined by two traders dealing in the said goods who opined that copper scrap and wire was a produce of foreign but in the relied upon documents shown in the show cause notice, this report has not been relied upon. This report was also not supplied to them even though they have raised this point before the Commissioner (Appeals) but the Commissioner (Appeals) has given the finding that the seizure was sustained on the basis of expert opinion of two dealers was neither declared as relied upon documents nor it was supplied to them, has no merits. Shri Asgar Ali has claimed the ownership of the goods by sending letter dated 15 -12 -2000. The letter was addressed to the Additional Commissioner of Customs, Lucknow. This letter was given to the department claiming ownership much before the issue of show cause notice but they have neither received any reply to this letter nor show cause notice was issued. Therefore, the action of the department not determining the ownership correctly is not correct. Finally, it was argued that since there is no proposal for imposition of penalty, therefore, the penalties are not sustainable and when no penalty has been imposed for any offence, the confiscation is also not sustainable.