B. SATHIK Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) CERTAIN electronic goods were seized by the police from a Tata Sumo Van (Registration No. TN 04 J 0183) which was intercepted on the apprehension that it was being used for smuggling goods of foreign origin. There were five persons in the vehicle at the time of its interception and they did not include the appellant (Shri B. Sathik), owner of the vehicle. After recording statements from the occupants of the vehicle, the police arrested and produced them before the Judicial Magistrate, who remanded the accused to judicial custody and also ordered transfer of the case to the Customs authorities. Thus a case was booked by the Customs authorities for confiscating the vehicle and other goods and for penalising those persons, who were concerned with the vehicle and the goods. The original authority ordered confiscation of the vehicle, but allowed the same to be redeemed on payment of a fine of Rs. 75,000/ -. It also imposed a personal penalty on one of the aforesaid persons (not the appellant). In an appeal filed by the present appellant, Id. Commissioner (Appeals) upheld the order passed by the lower authority as regards the vehicle. Hence the present appeal.

(2.) AFTER examining the records and hearing both sides, I find that, as rightly pointed out by ld. Counsel for the appellant, the vehicle was wrongly confiscated inasmuch as no nexus was established between its use as conveyance for the offending goods, and the appellant. The confiscation is under Section 115 of the Customs Act. In terms of Sub -section 2 of this Section, "any conveyance used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation unless the owner of the conveyance proves that it was so used without the knowledge or connivance of the owner himself or his agent, if any, and the person incharge of the conveyance". The appellant is the owner of the conveyance in the present case. He claims that the vehicle was used for carrying offending goods without his or his driver's knowledge or connivance. Admittedly, the appellant was not in the vehicle when it was intercepted and the goods therein were seized. The original authority did not impose any penalty on the driver or the appellant. The Department was not aggrieved by this non -imposition of penalty. The Commissioner (Appeals), notwithstanding this fact, held that the driver was not liable to be penalized in this case. The penalties were proposed only under Section 112 of the Customs Act. Thus, the lower authorities have concurrently found that the driver did not, by any commission or omission, render the seized (electronic) goods liable to confiscation under Section 111. In other words, it stands established that the driver had no knowledge that the goods which were liable to confiscation under Section 111 were being transported by him. The appellant, owner of the vehicle, was not present in the vehicle as already noted. His connection, if any, with the offending goods was only through his agent, the driver. Now that the agent stands exonerated from penal liability, the appellant would also stand on a similar footing. Under Sub -section 2 of Section 115, the appellant has established that the vehicle was being used for carrying smuggled goods without his knowledge or connivance. In the circumstances, the vehicle was not to be confiscated.

(3.) THE impugned order is set aside and this appeal is allowed, with consequential relief.