SHARFUDDIN KHAN Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) ALL the above appeals arise out of the order of Commissioner of Customs (Appeals), Calcutta, confiscating absolutely 62 fire arms consigned under a master Air Way Bill to Sharfuddin Khan and imposing a penalty of Rs. 7,500/ - on Sharfuddin Khan in the cases of 33 imports (each case comprising of one fire arm i.e. rifle) and imposing a penalty of Rs. 17,500/ - in two cases of import of 2 fire arms viz. one rifle and one revolver, and imposing a penalty of Rs. 7,500/ - on Smt. Quresha Begam in the case of one import by her.

(2.) THE case relates to import of 37 fire arms in 35 gift parcels; in 33 gift parcels, one fire arm each was imported, while in 2 gift parcels, 2 fire arms were each imported. Originally 62 fire arms in 60 gift parcels have been imported under one master Air Way Bill in the name of Sharfuddin Khan with separate individual House Air Way Bill in the name of individual gift recipients; 15 fire arms had been released before the issue of the original show cause notice dated 19 -2 -1986 in the present proceedings; after separate adjudication proceedings, 15 fire arms had been released to individual gift recipients; 10 fire arms were subsequently confiscated under a separate order passed by the Assistant Collector of Customs, Air Cargo complex. Initially a show cause notice was issued to Sharfuddin Khan on 19 -2 -1986 under the provisions of Section 124 of the Customs Act, 1962. This notice averred that Sharfuddin Khan who was the consignee of the consignment of the fire arms imported on 4 -2 -1985 by Air India flight at Calcutta Airport did not come forward to clear the consignment, that 15 fire arms were already cleared after adjudication by persons shown as consignees in the individual House Air Way Bills, that no one came forward to clear the remaining fire arms within a reasonable period, giving rise to the reasonable belief that the consignment had been imported in contravention of the Section 11 of the Customs Act, 1962 read with Section 3(2) of the Import and Export Trade (Control) Act, 1947 and were, therefore, liable to confiscation. The notice further averred that the supplier of fire arms viz. Essex Gun, of Essex UK had confirmed under cover of their letter dated 11 -2 -1985 that Sharfuddin Khan was the person concerned with the import. The notice alleged that Sharfuddin Khan was the importer of 47 fire arms (62 fire arms -15 fire arms already released to individual donees), in contravention of the law, thereby rendering fire arms liable for confiscation under Section 111(d) of the Customs Act, 1962 and rendering Sharfuddin Khan liable to penalty under Section 112 of the Act. The notice was adjudicated by the Deputy Commissioner of Customs who held that Sharfuddin Khan was the person concerned in the unauthorised import of 47 fire arms, absolutely confiscated the goods and imposed a penalty of Rs. 10,000/ - upon Sharfuddin Khan. The lower appellate authority held that there is no evidence whatsoever to hold that Sharfuddin Khan was the owner of 45 out of 47 fire arms ordered to be confiscated, that there is no evidence of show cause notice issued to individual consignees or the owners of the fire arms, and, therefore, he set aside the confiscation order of the Deputy Collector and directed him to confiscate the goods of individual consignees under the provisions of the law prevailing at the time of import of fire arms. He also set aside the penalty, without prejudice to the right of the Collector of Customs to decide the question of release of fire arms to the claimants separately. In pursuance of the above order of the Collector of Customs (Appeals), Calcutta, fresh show cause notices were issued and each notice was issued to the individual consignees as shown in the House Air Way Bill as well as to Sharfuddin Khan and the notices alleged that Sharfuddin Khan either imported the file arms unauthorisedly without a valid licence in the names of persons against whose names the House Air Way. Bills were issued, or that he abetted the illegal act of unauthorised importation of fire arms without any valid licence, thereby rendering the goods liable to confiscation and Sharfuddin Khan liable to penalty. The notice also alleged that each individual consignee had imported the fire arms in contravention of the law and that, therefore, the fire arms were liable for confiscation and each consignee liable for penal action. The notices were adjudicated by the Additional " Collector of Customs who absolutely confiscated the subject fire arms and also imposed personal penalty of Rs. 15,000/ - each on the individual consignee and on Sharfuddin Khan in each case. The order of absolute confiscation was upheld by the lower appellate authority in the impugned order and only the quantum of penalty was reduced to the amount as set out in the opening paragraph of this order. Hence these appeals.

(3.) I have heard Shri L.P. Asthana, learned Advocate and Shri D.K. Nayyar, learned DR.