RAM ANEK JHA Vs. COMMISSIONER OF CUSTOMS, PATNA

JUDGEMENT

(1.) THIS appeal is directed against the order -in -original dated 17 -8 -1999 of Commissioner, Customs, Patna. The grievance of the appellant is that the adjudicating authority although exonerated the appellant holding that there was no direct or indirect evidence, he ordered confiscation of truck of which the appellant was the owner.

(2.) SHRI A. Sinha, learned Consultant, submits that there is an apparent contradiction in the order of adjudicating authority inasmuch as on the one hand he found that there was no direct or indirect evidence and hence exonerated the appellant from all penal liabilities and on the other hand he confiscated the truck of which the appellant is the owner and imposed a redemption fine. He further submits that the truck was not available for confiscation at the time of adjudication of the case of for the reason that the same was released provisionally on execution of bond of cash security of Rs. 50,000/ -. Shri Sinha argues that this action of the adjudicating authority is not in accordance with law inasmuch as the adjudicating authority cannot confiscate the goods or vehicle when the same are not available for confiscation. According to him the appropriate action that is required to be taken by the adjudicator is to take course to the terms of bond executed by the appellant instead of ordering confiscation of the vehicle and imposing a redemption fine of Rs. 1 lac. He, therefore, pleads that a great injustice has been done to the appellant.

(3.) SHRI R.K. Roy, learned JDR submits that the lower authority is justified in ordering confiscation of the vehicle even though it is not available for confiscation because it has been held by him that the vehicle was actually used for transport of the smuggled goods and hence the vehicle is liable to confiscation u/s 115(2) of the Customs Act, 1962. He further submits that since the vehicle was released provisionally the act of confiscation is justified in law. At this stage Shri Sinha, learned Consultant submits that at the time of provisional release it was stipulated in the bond to the effect that appellant was required to produce the vehicle as and when required by the adjudicating authority. In the instant case the appellant was never asked to produce the vehicle before the adjudicating authority. As per terms of the bond, if the appellant fails to produce the vehicle before the adjudicator, he was at liberty to enforce the terms of the bond but he cannot confiscate the vehicle as the same was not available before him. Shri Roy, learned JDR, in his rejoinder states that although the vehicle was provisionally released it is presumed that the vehicle is in possession of the Customs Authorities and, therefore, the order of confiscation of such vehicle is in order.