S.P. HYDER ALI Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) ALL these six appeals arise from a common Order -in -Original dated 16.10.97 by which the Commissioner of Customs and Central Excise, Trichy has ordered for absolute confiscation of seized nine silver bars and silver granules of foreign origin totally weighing 200 kgs. valued at Rs. 16,00,000 under Section 111 (d) of the Customs Act, 1962 read with Section 3(3) of the Foreign Trade (Development and Regulations) Act, 1992, besides ordering confiscation of packing materials under Section 118/119 of the Customs Act, 1962. There is an order of confiscation of ambassador car bearing registration No. KL 04 B 2020 valued at Rs. 2.5. Lakhs to the Government under Section 115(2) of the Customs Act, 1962. However, under Section 125 of the Act, he has allowed to Sri Ali Hyder @ Hyderali, owner of the said car to redeem the same on payment of fine of Rs. 50,000 in lieu of confiscation. The following penalties under Section 112(b) of the Customs Act has been imposed:

(2.) THE proceedings arose with the information received by the officers of CPU/ Nagarcoil along with police officials of Valliyoor, intercepted an ambassador car bearing registration No. KL 04/B 2020 coming from Trivandrum and proceeding to Madurai at Eruvadi Road junction, Valliyoor on the Nagarcoil -Tirunelveli National Highway, found and recovered seven gunny bags under the front seat of the said car which was occupied by four persons who revealed their names as S/Sri A. Jayakumar, M.S. Shajahan, Abdul Salam and M.H. Sarafuddin all from Trivandrum. The Customs and Police officers found in the abovesaid seven gunny bags six full size silver bricks, three partly cut silver bricks along with silver granules. The silver bars were having the markings as "CCCP" with "sickle and hammer" indicating the Russian origin. The total weight and value of the silver bars and silver granules were 199.750 kgs., 250 gms. and Rs. 16.00 Lakhs respectively. As there were no duty paid documents found with or produced by the abovesaid occupants of the ambassador car, the Customs officers seized the said silver under a mahazar drawn before two independent witnesses and also the police officers present on the spot for further necessary action under Customs Act, 1962. The said ambassador car bearing registration No. KL 04/B 2020 valued at Rs. 2.5 Lakhs was also seized under the same mahazar on the reasonable belief that the said car had been used as a means of transport in the carriage of above -mentioned contraband.

(3.) THE statements of the persons occupying the car were recorded and in these statements modus operandi of the smuggling operation is said to have been disclosed. In the statement of Sri Jayakumar it was brought out that his friend one Sri Zahir of Beema Palli area Trivandrum, had sought his assistance to smuggle through Air -cargo complex, Trivandrum and that two passengers with 200 kgs. of silver would approach him and the said silver to be delivered to a party from Salem waiting at Madurai. Therefore, he had accompanied those two persons in their car with contraband from Trivandrum to Madurai and handed over to Sri Mohan of Salem waiting at Madurai who paid approximately Rs. 14.00 Lakhs to those passengers; that for helping them Sri Zahir had promised to pay Rs. 10,000 in the 1st week of December 1995; that on 15.11.95, Sri Zahir telephoned him and informed that he would send 200 kgs. of silver concealed in the baggage of two persons which would be cleared as unaccompanied baggage from Air cargo complex, Trivendrum; that the two passengers were aware of the concealment but would not declare it to Customs and clear the goods without payment of duty; that one Sri Shajahan would help him to take it from the passengers after clearance and conceal it in the car to be transported to Madurai to hand it over to one Sri Mohan of Salem; that Sri Zahir asked him to accompany the said contraband along with Sri Shajahan and also promised a substantial amount as commission; that accordingly, Sri Shajahan approached him on 16.11.95 and informed that the silver was cleared without payment of duty from Air cargo complex, Trivandrum; that on 21.11.95 car was arranged by Sri Shajahan; that on 21.11.95 Sri Zahir of Dubai also telephoned him to accompany one Abdul Salam and Shajahan who would bring contraband concealed in the car in which he has to accompany them to Madurai for handing over to Mohan of Salem who would wait for them near College House, Madurai; that on reaching Madurai, he should wait near the car and Mohan would approach him; that he was supposed to hand over the contraband and would receive demand draft for Rs. 14.00 Lakhs from him; that as arranged he was waiting near Killipalam bus stop at 20.00 hrs. and the car came at 20.30 hrs. and boarded the car with Sri Shajahan and Abdul Salam in the car and the driver was Sri Sarafuddin; that near Valliyoor at Eruvadi road diversion at about 3.30 hrs. on 22.11.95, the car was intercepted by the Customs and Police officers, who searched and recovered nine silver bars in seven gunny bags kept concealed underneath the front seat of the car before two independent witnesses; that the same was seized by officers and he had no objection for confiscating the said silver to Government; that for the past ten years he was in the business of smuggling of goods of foreign origin and also visited Singapore and Dubai and brought contraband concealed in his baggages; that he was to Singapore during September 1995 and brought goods worth Rs. 1.00 Lakh; that he was helping Sri Zahir and Sri Shajahan etc. for disposing of the non -duty paid silver for the sake of money; that Sri Zahir would pay commission and admitted his offence.