SHRI RAM SARAN MUKESH KUMAR, SHRI Vs. CC

JUDGEMENT

(1.) HEARD both sides.

(2.) THE appellant filed these appeals against the common order -in -appeal. The brief facts of the case are that 90 Qtls. of Indian potatoes valued at Rs.72,000/ - were confiscated and allowed to be released on redemption fine of Rs.10,000/ - on the ground that the appellant tried to smuggle the potatoes to Nepal in violation to the provisions of Notification No. 26/98 dated 27,10,98 Issued under Section 5 of Foreign Trade (Development and Regulation) Act, 1992 read with Import and Export Policy 1997 -2002, The case of the Revenue is that the potatoes were added at SI. No. 32 in part II of Chapter 16 of the policy whereby the export of the potato was restricted and this restriction on export amounts to prohibition imposed under Section 11 of the Act. The truck from which the potatoes were seized were also confiscated and allowed to be redeemed on redemption fine of Rs.10,000/ - individual penalties were imposed on the driver, owner and the consigner Sh. Anil Kumar. The appellant Sh. Ram Saran Mukesh Kumar sold 90 Qtls, of Indian potato at Gorakhpur to Khalil Ahemed at Badaun, the goods were booked through transport under the proper GR. As per the statement of driver of the truck as there was some festival at Ayodhya, therefore the road was closed and he diverted the truck through some other route to reach Gorakhpur, During transit he stopped by the Police at Barhni and subsequently handed over to the Custom authorities. The contention is that the truck driver in his statement before the Custom authorities narrated the. facts that he was driving the truck from Barhni to Gorakhpur for delivery of the truck and Police intercepted during the transit. He never admitted that fact that he was going to Indo -Nepal border and any attempt was made to smuggle the potatoes to Nepal. The contention Is that in these circumstances, the confiscation of the potatoes as well as truck and personal penalties is not sustainable.

(3.) THE contention of the Revenue is that driver of the truck admitted before the Police that truck was standing near the No Man's Land at Indo Nepal border and the potatoes are being unloaded at that place. The contention is that the summons issued to M/s Khalil Ahmed was returned undelivered, therefore, the appellant failed to prove the fact that the potatoes were for Khalil Ahmed. As the potatoes were restricted item it cannot be exported out of India, therefore, the impugned order was rightly passed.