Customs, Excise and Gold Tribunal - Tamil Nadu
Rajina Bibi vs Collector Of Central Excise And Customs on 12 March, 1986
Equivalent citations: 1987(13)ECR133(TRI.-CHENNAI), 1986(25)ELT358(TRI-CHENNAI)
ORDER S. Kalyanam, Member (J)
1. This appeal is directed against the order of the Additional Collector of Customs, Madurai, referred to above, imposing a fine of Rs. 15,000/- in lieu of confiscation of the lorry bearing registration No. TNT 276 under Section 125 of the Customs Act, 1962, hereinafter referred to as the Act.
2. On 7-12-83, the Customs Preventive Officers attached to Tuticorin, noticed four persons unloading some bundles from a lorry bearing registration No. TNT 276 at Ariyakulam cross Road near Palayamkottai and loading them in a van TNI 5058. There were 8 bundles in the lorry and two in the van, and Sultan, the owner of the goods, on interrogation by the authorities admitted that the goods were Indian textiles valued at Rs. 50,000/-, meant for illicit export out of India. The goods were seized under mahazar as per law attested by witnesses and the proceedings instituted against the appellant and others, after due investigation, eventually resulted in the impugned order now appealed against.
3. The learned counsel for the appellant submitted that Section 115(2) of the Act would not apply to the facts and circumstances of this case. It was further urged that the adjudicating authority having found that the driver of the lorry in question, viz. S. Muthaliff, did not know the purpose for which he was asked to drive the lorry, should have also consequently released the lorry without imposition of any fine. He further urged that the owner of the lorry, the appellant herein, and the driver Muthaliff having been clearly found by the adjudicating authority under the impugned order to have had no knowledge at all about the attempted illegal export and in the absence of any material to hold that one Sultan, at whose behest the lorry was taken by the appellant's driver, was either the agent of the appellant or a person in charge of the conveyance within the meaning of Section 115(2), the adjudicating authority should have released the confiscated lorry TNT 276 without any fine.
4. The learned SDR submitted that even though under the impugned order the adjudicating authority has found that neither the owner of the vehicle, viz. the appellant, nor the driver of the vehicle knew about the attempted illegal export of the goods under seizure, inasmuch as the driver has taken the vehicle on the direction of Sultan, the brother of the appellant, Sultan should be held to be the person in charge of the vehicle so as to fasten a liability on the vehicle under Section 115(2) of the Act. He also urged that confiscation proceedings are proceedings in rem and therefore once the goods under seizure are proved to be offending goods, as in the instant case, confiscability of the vehicle in question would follow automatically as a matter of sheer legal consequence. Finally the learned SDR resubmitted that the appellant has not proved to have taken reasonable precautions as enjoined on her under Section 115(2) of the Act.
5. I have carefully considered the submissions of the parties herein. The important question that arises for my determination in this appeal is whether the vehicle in question is confiscable in the facts and circumstances of this case. It would be relevant and proper to extract Section 115(2) of the Act which would have a bearing on the issue arising for determination in this case. Section 115(2) reads as under :
115. "(2) Any conveyance or animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation, unless the owner of the conveyance or animal proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance or animal and that each of them had taken all such precautions against such use are for the time being specified in the Rules;
Provided that where any such conveyance is used for the carriage of goods or passengers for hire, the owner of any conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine not exceeding the market price of the goods which are sought to be smuggled or the smuggled goods, as the case may be".
In the instant case, under the impugned order no penalty has been imposed either on the owner of the vehicle, the appellant herein, or on the driver of the vehicle, Muthaliff. The adjudicating authority has also dropped proceedings against the lorry drivers observing :
"Similarly, I drop proceedings against the lorry drivers Muthaliff and Anwar who were dictated by the directions of Shri Sultan, being his employees without knowing the purpose for which they were asked to drive the lorry."
It is also relevant to note that the goods involved in the instant case are Indian textiles and the place of seizure is Ariyakulam Cross Road near Palayam-kottai, Tirunelveli district. Under law, any conveyance used as a means of transport in the smuggling of any goods would become liable to confiscation unless the owner of the conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any and the person in charge of the conveyance and that each of them had taken all such precautions against such use and for the time being specified in the Rules. In the instant case, under the impugned order the adjudicating authority himself has categorically found that neither the owner nor the "driver had any knowledge of the conveyance being used as a transport in the smuggling of the goods under seizure. Therefore, consistent with his finding, in my opinion, the vehicle should have been released without any fine inasmuch as there is absolutely no evidence, on record to indicate that the vehicle was used as a means of transport for smuggling the goods under seizure either with the knowledge of the owner or her agent or the person in charge of the conveyance. I went through the statement recorded from the appellant by the authorities dated 13-12-83 wherein also the appellant has stated that she was not in cordial terms with Sultan after her father's death because of some partition disputes in the family. The evidence clearly bears out that it is Sultan who has directed the driver to drive the lorry with the goods under seizure. The goods being Indian textiles merely because the driver obeyed the direction of the said Sultan and drove the lorry in Palayamkottai area, it cannot be said that Sultan would be a person in charge of the vehicle within the meaning of Section 115(2) so as to render the vehicle within the meaning of Section 115(2) so as to render the vehicle in question confiscable. Sultan, who according to the Department, was attempting to illegally export Indian textiles and transporting the same in the vehicle in question cannot be said to be either the agent of the owner or a person in charge of the conveyance. A reading of the statement recorded from the appellant dated 13-12-85 bears out that she was in charge of the vehicle and her brother Kattuva Maideen also used to look after it when-ever time permitted. Kattuva Maideen has not been examined and no statement has been recorded from him. Therefore in the context of the admitted finding by the adjudicating authority under the impugned order that neither the appellant nor the driver had any knowledge about the alleged attempted smuggling, and when Kattuva Maideen, the person who used to look after the vehicle as and when time permitted has not been examined during investigation, there is absolutely no ray or scintilla of evidence to bring it within the mischief and ambit of Section 115(2) of the Act. The adjudicating authority under the impugned order has observed as follows :
"...it was always used at the instance of her brother Kattubhava, who acted as agent, and knowingly had allowed the use of the lorry under the directions of Shri Sulthan".
There is nothing in evidence to indicate that Kattuva Maideen played any role at all and in the absence of any evidence against Kattuva Maideen, it does not stand to reason how the adjudicating authority has found that Kattubhava "knowingly had allowed the use of the lorry under the directions of Shri Sulthan". I should confess that this finding of the Adjudicating authority is clearly unsupported by the evidence on record. Likewise, the finding of the adjudicating authority that there is no evidence to show that appellant Ragina Bibi had taken reasonable precautions against misuse of the lorry is also incorrect since the statement of the appellant dated 13-12-83 before the authorities clearly bears out that she had given strict instructions to the driver that the vehicle in question shall not be used for any unlawful purposes.
6. Therefore, in the facts and circumstances of this case I find from the evidence on record that the lorry in question was not used as a means of transport in the attempted illegal export of the goods under seizure either with the knowledge of the owner or her agent or the person in charge of the conveyance and the act of transport simpliciter of Indian textiles in an area in Tirunelveli district near Palayamkottai would not ipso facto render the vehicle in question confiscable under Section 115(2) of the Act.
7. In the. result I set aside the impugned order appealed against and allow the appeal.