SHRI KAMLAKANT MISHRA Vs. CCE

JUDGEMENT

(1.) THIS appeal is directed against Order -in -Appeal dated 30.9.2004 which upholds the Order -in -Original upholding the confiscation and imposition of penalty.

(2.) THE relevant facts that arise for consideration are that officers of Customs (Preventive), Varanasi on 28.12.1994 intercepted and recovered eight wooden boxes from truck bearing Registration No. UP -78B -5470 which were concealed below the gunny bags of rice husk. The wooden boxes were found to contain ball bearings of foreign origin of different sizes. The truck and all the goods found, were seized. Based on the documents found in the truck the officers found out that the appellant herein is the owner of the truck and visited his residence but nothing incriminating was found. The appellant herein, gave a statement that he had asked the driver to transport a consignment of guavas, and that he does not have the address of the driver. The appellant also further stated that the driver was appointed by him recently that also on the recommendation of Shri Kripal Singh of Man Transport Ltd., Kanpur. In his statement Mr. Kripal Singh stated that he knew the driver very well but he does not have address. A show cause notice was issued for confiscation of the seized goods and vehicle and for imposition of penalty. The adjudicating authority, absolutely confiscated the foreign origin ball bearings and confiscated the truck with an option to redeem the same on payment of redemption fine of Rs. 50,000/ - and also imposed penalty of Rs. 40,000/ - on the appellant. The appellant preferred an appeal to the Commissioner (Appeals), but could not get any relief on merits, and hence this appeal.

(3.) THE learned Advocate appearing for the appellant submits, that, he had given the truck on hire for transporting of goods and to earn a livelihood. He was not aware that the truck was transporting smuggled goods. It was also submitted that the appellant having not able to locate the whereabouts of his truck, lodged a FIR on 26.12.94 with Daveri Police Station, Kanpur about the missing truck. It was also submitted that the imposition of penalty and confiscation of the truck in this case does not arise as it is not proved that owner not involved or was aware of the smuggled nature of the goods recovered form the truck. Reliance was placed on the case law of Naveed Ahmed Khan v. C.C. Bangalore as reported at and in Final Order dated A/489 -490/03 -NB dated 01.05.03 in the case of Balvinder Singh and another, for the proposition that confiscation and penalty on the owner of the truck is wrong, if he is unaware of the nature of goods being carried and if the goods are non -notified goods. The learned D.R. submits that, the appellant an owner of the truck cannot state that he is not aware of the address of the driver employed by him. It was submitted that the person on whose recommendation the appellant appointed the driver was also not able to give the address of the driver. This viewed from the total angle of the foreign make bearing being carried without any documents and concealed under the rice husk, would definitely point a finger towards the involvement of the appellant in this case.