BHAGYASHREE TRANSPORT (P) LTD. Vs. CCE

JUDGEMENT

(1.) THE appellant company is a transport Company engaged in the plying of public carrier vehicles (trucks). On 20.10.1996, one of the trucks belonging to the appellant company was intercepted by the Officers of Central Preventive Unit, which in turn resulted in recovery of foreign origin rechargeable lantern, Video Cassettes, Silk Yarn which were concealed under Particle Board. The said truck along with the Particle Board and the contraband were seized. Statement of the driver was recorded, which was to the effect that the goods were loaded on their return visit. After adjudication, the Commissioner vide his impugned Order confiscated the truck with an option to the appellant to redeem the same on payment of a fine of Rs. 4.00 lakh only. Penalty of Rs. 2.00 was also imposed on the appellants under Section 112(a) of the Customs Act, 1962, apart from imposing penalty on other accused persons. Shri K.P. Dey, learned Advocate appearing for the appellants, submits that the Particle Board was loaded by the appellant company on behalf of M/s. ABC India Ltd. under proper documentation, for transporting the consignment from Bhutan to Coimbatore. On its way to Siliguri, the driver of the truck in question loaded some contraband goods without the knowledge of the owner of the transport company. He submits that the Particle Board belonging to M/s. ABC India Ltd. was also confiscated by the Commissioner. But on appeal against the same, the Tribunal vide its Order No. A -383 dated 23.4.1998 allowed the appeal and set aside the Order of confiscation of Particle Board. He further submitted that in the impugned Order, the Commissioner has imposed penalty upon the transport company by observing that the transport company has failed to take reasonable step to ensure that their truck would not be used for transportation of goods liable for confiscation. He submits that the goods have not been loaded from the premises of the transport company and the documents handed over to the driver clearly mentioned that no other goods other than those covered under the documents would be carried in the vehicle. He submits that it clearly establishes that the owner of the vehicle has taken all precautionary steps against the carrying of such contraband and if any contraband had been found in the truck the same was without any knowledge or connivance of the owners. He submits that in his statement, the manager of the Company had also stated that such action was taken by the driver on his own without any instruction from any responsible person of their Company. He also submits that there is no legal evidence to implicate the appellants. He further submits that the adjudicating authority has also observed that another truck belonging to the same transport company was also intercepted by the Customs Officers and contraband goods were recovered from the same just one week before the interception of the present truck. He submits that the seizure of that truck has been adjudicated by the Commissioner and vide his Order dated, 24.12.1998, though, truck has been confiscated, the appellants have been exonerated by the adjudicating authority. As such, he submits that the appellant company had acted in a manner as is normal in a genuine bona fide commercial transaction and there is no evidence to show any direct link between the transport company and the contraband goods.

(2.) AS regards the confiscation of the truck, Shri Dey, learned Counsel submits that the redemption fine imposed upon the appellants, is much on the higher side. The truck has been lying with the Customs Department right from 1996 and has deteriorated to a great extent. The value of the same has come down. In the circumstances, he prays for reduction in the redemption fine.

(3.) I have considered the submissions made from both sides. There is no direct evidence on record showing the involvement of the transport company in carrying of the contraband goods. The driver of the truck in his statement has clearly said that the goods were loaded en route. It is also on record that the contraband was not loaded in the truck along with the Particle Board of M/s. ABC India Ltd. in the presence of the transport company. The Manager of the appellant company, in his statement has clearly said mat no such instruction was given to the driver. In the circumstances, I find that the imposition of penalty under the provisions of Section 112(a) of the Customs Act, 1962, on the transport company is neither justified nor warranted. Accordingly, I set aside the same. As regards the confiscation of the truck, the same is liable to confiscation under the provisions of Section 115 of the Customs Act, 1962 inasmuch as the same was used for carrying the contraband with the knowledge of the driver of the truck who was in charge of the vehicle at the relevant time. However, taking a lenient view after considering the facts and circumstances of the case, I reduce the redemption fine from Rs. 4.00 lakh to Rs. 2.00 lakh (Rupees two lakh) only. The appeal is allowed in above terms.