LAL MOHAN RAI Vs. COMMISSIONER OF CUSTOMS, PATNA

JUDGEMENT

(1.) THESE two appeals have been taken up together for disposal as the same emanate from the common Order -in -Appeal Nos. 288 -289/Pat/Cus/Appeal/99, dated 1 -12 -1999 of Commissioner of Customs and Central Excise (Appeals), Patna.

(2.) THE appellants - Shri Lal Mohan Rai, owner of Truck No. BR -06G 3891, and Shri Om Kumar Sah, Munsi of M/s. Sagar Transport, Muzaffarpur - were imposed a penalty of Rs. 7,500/ - and Rs. 25,000/ - respectively under Section 112 of the Customs Act, 1962 besides confiscation of the said truck with a redemption fine of Rs. 50,000/ - vide Order -in -Original No. 70 -Cus./98, dated 25 -9 -1998 of Deputy Commissioner of Customs (Preventive), Patna on the ground that 1100 kgs of contraband betelnuts of foreign origin were being transported in the aforementioned truck. The finding against Shri Sah was, that he accepted the booking of the contraband betelnuts and tried to transport the same from Muzaffarpur to Patna using the truck of the Transport firm in which he is an employee and he failed to give correct information regarding the name and address of the person who had booked the betelnuts with the said transport firm. The adjudicating authority, therefore, held him to be in the center of the whole episode. As regards Shri Lal Mohan Rai, the owner of the truck, the finding of the Adjudicating authority was that the owner of truck always has to account for every omission and commission and if his servant, be it driver or Munsi, and if the servant depots any means, right or wrong, to give benefit to him, then the owner is also equally guilty of the illicit act done by the driver. He, therefore, held him liable for penalty under the Customs law. Based on the above findings, the truck was confiscated with a redemption fine and the penalties as aforesaid were imposed on the appellants. As the appellants failed to succeed at the first appellate stage, the present appeals have been preferred to the Tribunal.

(3.) SHRI P.R. Biswas, ld. Consultant appearing for both the appellants, assails the orders of the lower authorities on the ground that there was no tangible evidence on record to show that the betelnuts in question were of smuggled nature. He submits that betelnuts are freely available in the market all over India and the same are not prohibited or notified item under the Customs Act, 1962. He further submits that the Department had taken opinion of the local traders which, according to them, confirmed that the betelnuts in question were of third country origin. He points out that the appellants were neither supplied with a copy of the trade opinion nor the traders who gave the opinion were made available for cross -examination. He considers this as gross violation of the principles of natural justice. 3.1 Arguing for Shri Lal Mohan Rai, the ld. Consultant submits that the appellants had given instructions to his Munsi not to accept any goods for carriage on which any legal restriction was in force. He, therefore, argues that confiscation of the truck is bad in law and imposition of penalty on the owner of the truck is unjustified. 3.2 Arguing on behalf of Shri Om Kumar Sah, the ld. Consultant pleads that Shri Sah is a mere employee of the transport firm and had booked the consignment at which time no grounds existed for doubting the goods contraband nature of the goods. He vehemently argues that adverse finding drawn against the appellant is against all cannons of justice and imposition of penalty on him unwarranted.