Customs, Excise and Gold Tribunal - Calcutta
Danzong Cargo Movers vs Commissioner Of Cus. (Prev.) on 4 November, 2004
Equivalent citations: 2005(101)ECC499, 2005(184)ELT314(TRI-KOLKATA)
ORDER V.K. Jain, Member (T)
1. The instant appeal has been filed by M/s. Danzong Cargo Movers against the Order-in-Appeal No. Prev-Cus-177/2003, dated 15-7-2003 passed by Commissioner (Appeals) Customs, Kolkata. The Commissioner has rejected the appeal filed by the appellant company.
1.1. The brief facts of the case are that the Customs Officers of Kaliachak Preventive Unit intercepted one Tata (open body) Truck bearing Regd. No. DL-IGB/2041 near Purnia More, Dalkhola, after a chase, as the said truck tried to run away violating Customs Officers' signal to stop. Then the said truck was checked and contraband goods were found loaded in the said truck. The truck in question was brought to the Kaliachak Customs Office where it was thoroughly checked in the presence of the driver and two independent witnesses, resulting in the recovery of 1500 pcs. of Japan-made Video Cassettes marked as "Panasonic AF-E180" kept concealed under 659 cans. The driver of the said truck produced the covering documents for the beer cans. But he could not produce any valid documents in support of importation of the possession/transportation of blank Video Cassettes of Japanese origin. The Customs Officers seized the goods after preparing an inventory of the same under Section 110 of the Customs Act on a reasonable belief that the blank Video Cassettes having been concealed under indigenous goods were illegally imported into India and were being transported by the said truck by violating Section 3(3) of Foreign Trade (Development & Regulation) Act, 1962 read with Section 11 of the said Customs Act, rendering the same liable to confiscation under the provisions of the Customs Act. The show cause notice was issued to the noticees. The case was adjudicated by the lower authority, whereby the said authority had absolutely confiscated the blank Video Cassettes. He also confiscated the beer cans used as concealing materials under the provisions of Section 119 of the Customs Act. However, an option was given to the appellant company to pay a redemption fine of Rs. 30,000.00 in lieu of confiscation. Since the appellant company has furnished a Security Deposit of Rs. 30,000.00 at the time of provisional release of the beer cans, the said amount was appropriated towards adjustment of the redemption fine. He also confiscated the truck in question and imposed a penalty of Rs. 5000.00 on the driver of the said vehicle.
1.2 The appellant company filed an appeal with the Commissioner of Customs (Appeals) who rejected the appeal of the appellant company and hence this appeal.
2. Heard Shri K.P. Dey, learned Advocate for the appellant company, reiterates the facts of the case. He also submits that the Commissioner (Appeals) in the impugned Order-in-Appeal has observed that Section 119 of the Customs Act, 1962 provides that any goods used for concealing smuggled goods shall also be liable to confiscation and upheld the Order-in-Original of confiscation in disregard to the observations of the Tribunal in the case of Mazda Chemicals reported in 1996 (88) E.L.T. 767 (WRB) in which it was held that there was a distinction between concealment and coverage. Shri Dey also submits that at best, the beer cans merely covered the contraband goods and as such, they are not liable to confiscation. He, therefore, prays that the Order-in-Appeal be set aside by allowing the appeal of the appellant company with consequential relief to them.
3. Heard Shri T.K. Kar, learned S.D.R. for the Revenue. He submits that the above case was made by the Customs Officers on specific information as indicated in the show cause notice. The truck was intercepted after a chase as the said truck tried to run away violating the Customs Officers' sign to stop. The blank Video Cassettes made in Japan were kept concealed under the beer cans loaded in the truck. He also draws my attention to Section 119 of the Customs Act, which says that, any goods used for concealing smuggled goods shall also be liable to confiscation. He also submits that the blank cassettes of foreign origin were being illicitly imported into India and they were concealed by the said beer cans. He, however, submits that the case laws referred to by the learned Advocate for the appellant company, are distinguishable. It is of no consequence that the appellant company has acquired the goods which were used for concealing the contraband goods in the normal course of business or they themselves were not contraband goods. Section 119 of the Customs Act excludes any mens rea.
4. I have heard both sides. The appellant company is the Carrying Agent of the manufacturer of the beer cans which have been confiscated under Section 119 of the Customs Act, 1962, as they were used for concealing the smuggled blank Video Cassettes. From the case records it is apparent that the truck in question was intercepted, acting on specific information by the Customs Officers and after a chase by the Customs, as the truck did not stop in spite of signalling by the Officers. The statement of the driver indicates that he was in knowledge of the contraband goods and he was involved in using the impugned goods for concealing the contraband goods for illegal gains. Section 119 of the Customs Act lays down for confiscation of goods used for concealing smuggled goods. In this case, there is no doubt that the beer cans were used as concealment for the smuggled blank Video Cassettes. I find that the case laws cited by the learned Advocate are distinguishable in the present case. I find no infirmity in the Order passed by the Commissioner (Appeals). As such, I uphold the same. The appeal filed by the appellant company is rejected.