SILIGURI CHEMICAL INDUSTRIES Vs. COMMISSIONER OF CUSTOMS, PATNA

JUDGEMENT

(1.) VIDE the impugned order penalty of Rs. 50,000/ - has been imposed on both the appellants and plaster of paris belonging to them has been confiscated with on an option to redeem the same on payment of redemption fine of Rs. 20,000/ -. The second appellant Shri Kailash Chand Jain is the Director of the first appellant company which is engaged in the manufacture of plaster of paris and lime stone powder. The said goods were contracted to be transported to Calcutta through Rohit Roadways who arranged truck for transportation of the goods. When the said truck was on its way to Calcutta the same was intercepted by the Customs Officers and put to search. On search of the said truck apart from plaster of paris, the same was found to contain miscellaneous foreign goods worth Rs. 7.37 lac. The same along with other items was seized by the officers. The driver of the said truck in his statement submitted that he loaded the consignment of plaster of paris at the premises of M/s. Siliguri Chemical Industries and handed over the said truck to his khalasi and went to see his ailing wife at Siliguri. On its way also he had left the truck with khalasi when the same broke down and he had gone out in search of mechanic. He was ignorant of loading of the contraband goods in the said truck. During investigation proceedings the statement of owner of the truck as well as the authorised representative of Roadways were also recorded wherein they had admitted the fact of giving the said truck for transportation to Siliguri Chemical Industries but showed their unawareness about loading of the contraband items in the said truck. Similarly the appellants also showed their ignorance about loading of the contraband items in their statement pleading that they had engaged the truck for transportation of plaster of paris only. Khalasi of the truck could not be contacted as his exact address was not disclosed either by the driver or owner of the truck. On above basis notices were issued to them. Nobody claimed the ownership of the seized contraband goods. Commissioner, Customs held that plaster of paris was used for concealing the contraband items and as such was liable to confiscation. Penalties have also been imposed on the appellants by observing that as the original loading of the goods was done at the aforesaid premises of Siliguri Chemical Industries, firm as well as the Managing Director are responsible for loading of the smuggled goods in question.

(2.) I have heard Shri K.P. Dey, learned Advocate for the appellants and Shri T. Prem Kumar, learned SDR for the Revenue.

(3.) NOBODY has claimed the ownership of the confiscated goods of foreign origin. As regards the confiscation of the plaster of paris belonging the appellants I find that there is no evidence on record to show that the same were used for the purpose of concealing the foreign origin goods. West Regional Bench in the case of Mazda Chemicals v. C.C. (P), Ahmedabad - 1996 (88) E.L.T. 767 (T) and has drawn a line of distinction between the concealment and coverage. It has been observed that the provisions of Section 129 of the Act cannot be implemented where the indigenous goods have been used for covering the smuggled goods. As such following the ratio of the above decision and in the absence of any evidence that there is a nexus between the owner of the plaster of paris and the smuggled goods I set aside the order of confiscation to plaster of paris and order its release to the appellants.