Custom, Excise & Service Tax Tribunal
Om Prakash Madheshiya vs C.C. Lucknow on 3 February, 2026
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
ALLAHABAD
REGIONAL BENCH - COURT NO.II
Customs Appeal No.70079 of 2024
(Arising out of Order-in-Appeal No.935-937-Cus/Appl/LKO/2022 dated
11/04/2022 passed by Commissioner (Appeals) Customs, Central Excise &
Service Tax, Lucknow)
M/s Om Prakash Madheshiya, .....Appellant
(New Main Road, Singhai Khurd,
PS-Sampurna Nagar, Lakhimpur Khiri)
VERSUS
Commissioner of Customs (Pre.), Lucknow ....Respondent
(Vibhuti Nagar, Gomti Nagar, Lucknow-226010) APPEARANCE:
Shri Nagendra Krishna, Advocate for the Appellant Shri Santosh Kumar, Authorised Representative for the Respondent CORAM: HON'BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) FINAL ORDER NO.70038/2026 DATE OF HEARING : 03 February, 2026 DATE OF DECISION : 03 February, 2026 SANJIV SRIVASTAVA:
This appeal is directed against Order-in-Appeal No. 935- 937-Cus/Appl/LKO/2022 dated 11/04/2022 passed by Commissioner (Appeals) Customs, Central Excise & Service Tax, Lucknow. By the impugned order, Commissioner (Appeals) has held as follows:-
"5. I have gone through the case records. By the impugned order, confiscation of smuggled Peas & the vehicle was ordered under Section 111(b)& 115(2) of the Customs Act, 1962 respectively and penalties were also imposed upon the appellants U/s 112 of the Act.
Customs Appeal No.70079 of 2024 2 I find from the records that the recovery of the smuggled peas from the vehicle No. UP-31 /AT-4492 has not been disputed as Shri Rakesh Kumar Nishad, the appellant no.1 (Driver & Owner of the seized vehicle) & Shri Rohit (Helper of the seized vehicle) failed to provide any documentary evidences such as invoices, bill of entry, etc for proper importation of said goods as the same were intercepted from a place which is close to Indo-Nepal Border Pillar No.764/5 on 05.10.2020 and both of them accepted vide their statement dated 05.10.2020 recorded vide Section 108 of the Act that they had no connection with the seized peas. Shri Rakesh Kumar Nishad categorically accepted that the said consignment was loaded near Sampoorna Nagar, by the person whom he don't know, destined to Lakhimpur Mandi. Later, while adjudicating the instant case, both the appellants submitted written submissions during the personal hearing on 24.08.2021 and submitted that the said consignment had all valid importation documents and Mr. Om Prakash Madhesiya, the appellant no.3, was the owner of the said consignment. I find that the these facts are contradictory to each other. I also find that the claimed owner of the goods came into picture after lapse of more than a year and the adjudicating authority has discussed the same in length in Para 20 of the impugned order. In view of this I find that the said consignment was rightly seized under Section 110 of the Act. From the facts of the case as discussed in the O-in-O, it can be safely deduced that the adjudicating authority has rightly confiscated the said goods for violating the provisions of Section 11 of the Act read with Notification No.9/96-CUS(N.T.) dated 22.01.1996, Section 7(1)(c)of the Act &. Notification No.63/94-CUS(N.T.) dated 21.11.1994. It is also an admitted fact that the vehicle was indeed used in illegal transportation of the smuggled peas. and to that extent I uphold the confiscation of the said vehicle under Section 115(2) of the Act.
Customs Appeal No.70079 of 2024 3 In respect of the penalties imposed on the appellants under Section 112 of the Customs Act,1962, I find that all the appellants were fully involved ir the entire operation of attempted smuggling, the appellant no.1 & 2 gave contradictory statements recorded under Section 108 of the Act indicating that they were not coming out with truth and something to hide in the illegal importation of the said consignment, the appellant no. 3 did not provide any documentary evidence of local procurement of the said goods, leading to hold that the adjudicating authority has rightly imposed penalty invoking the provision of Section 112 of the Act against them in the impugned order, to which I do not wish to interfere."
1.2 The impugned order is in respect of three persons, I do not find other appeal filed in these proceedings leading to confiscation of allegedly smuggled peas and imposition of penalty on other appellants.
2.1 On 05.10.2020, the SSB officers of Sumernagar, Lakhimpur intercepted vehicle No.UP-31/AT-4492 loaded with foreign peas, illicitly being transported from Nepal to India through unauthorized routes and handed over to the officers of the Customs (P) Division. The vehicle was intercepted at a place just 6 kms from the Indo Nepal Border near pillar No 764/5. The driver of the vehicle Shri Rakesh Kumar Nishad (also the owner of vehicle) in his statement recorded under Section 108 of the Customs Act, 1962 stated that he had no relation with the seized goods, he loaded the goods for freight of Rs.5,000/-. The owner of peas was accompanying the vehicle and would meet him in Lakhimpur Mandi. The helper, Shri Rohit, who was also in the vehicle stated that vehicle was owned by his father Shri Rakesh Kumar and they had no connection with illicit pea loaded in the vehicle.
2.2 No person was named by either the driver (the owner) or the helper who were intercepted with the vehicle and illicit Customs Appeal No.70079 of 2024 4 goods. No documents were produced to establish the ownership of the said peas. No person came forward to claim the ownership of the said peas though bought driver and helper have in their statement stated that the owner of illicit peas was accompanying and would meet them in Lakhimpur Mandi..
2.3 Thus, on a reasonable belief that the recovered peas was illicitly brought into India through unauthorized routes in violation to the provisions of Notification No. 63/94(N.T.) dated 21.11.1994 under Section 7(1)(c) of the Customs Act, 1962, the same are liable for confiscation under Section 111(b) Customs Act, 1962 and vehicles loaded with said goods were also liable for confiscation under Section 115(2) of the Act and the same were seized under Section 110 of the Act.
2.5 Being perishable goods the said peas were auctioned and the money received i.e. Rs 88,200/- was deposited vide TR-6 Challan No 01 dated 27.10.2020. The seized vehicle was provisionally released to the owner of vehicle Shri Rakesh Kumar Nishad on execution of bond of Rs 3,00,000/- and a bank guarantee of Rs 30,000/-
2.4 After inquiry, a show cause notice 25.03.2021 was issued to the related persons asking them to show cause as to why:
क) उपरोक्त पैरा- 01 में क्रम संख्या (1) पर उल्लेखित मटर कुल मूल्य 88,2001- (रुपया अठ्ठासी हजार दो सौ मात्र) सीमा शुल्क अधधधनयम, 1962 की धारा 111 (b) के अन्तर्गत अधधग्रहीत (confiscate) कर धलया जाये।
(ब) उपरोक्त पैरा- 01 में क्रम संख्या (2) पर उल्लेखित 01 अदद वाहन बोलेरो धपकअप पंजीकरण संख्या UP. 31/AT-4492 अन्माधनत कीमत रुपया 3,00,000/- (रुपया तीन लाि मात्र) को सीमा शुल्क अधधधनयम, 1962 की धारां 115(2) के अन्तर्गत अधधग्रहीत (confiscate) कर धलया जाये।
र्) उक्त 01 अदद वाहन बोलेरो धपकअप पंजीकरण संख्या UP-31/AT- 4492, अनुमाधनत कीमत रुपया 3,00,000/- (रुपया तीन लाि मात्र) की Customs Appeal No.70079 of 2024 5 बैंक र्ारन्टी या सुरक्षा जमा राधश रुपया 30,000/- को सीमा शुल्क अधधधनयम, 1962 की धारा 126 के अन्तर्गत भारत सरकार के पक्ष में समायोधजत कर धलया जाये।
(घ) उपरोक्त पैरा- 05 में उल्लेखित मटर की नीलामी से प्राप्त धनराधश र ू् पया 88,200/- (रुपया अठ्ठासी हजार दो सौ मात्र) को सीमा शुल्क अधधधनयम,1962 की धारा 126 के अन्तर्ेत भारत सरकार के पक्ष में समायोधजत कर धलया जाये।
ड) श्री राकेश कुमार धनषाद पत्र श्री राम नरे श धनषाद (बाहन स्वामी). श्री रोधहत पुत्र श्री राकेश (वाहन के हे ल्पर) और "धजस धकसी से भी सम्बंधधत हो"
पर सीमा शुल्क अधधधनयम,1962 की धारा 112 के अन्तर्गत जुमाग ना. (अथगदण्ड) लर्ाया जाये ।
2.5 None filed any reply to the show cause notice. Following the principles the opportunity of personal hearing was given on 24.08.2021, when Shri Raghvendra Pratap Singh Advocate appeared on behalf of the owner (Shri Rakesh Kumar Nishad) and helper (Shri Rohit). Counsel also filed vakalatnama for one person namely Shri Om Prakash Madheshiya (Appellant), claiming to be the owner of the seized peas.
2.6 The said show cause notice was adjudicated as per the Order-in-Original dated 17.02.2022, holding as follows:
"आदे श (क) मैं अधभग्रहीत 2940 धकलोग्राम धवदे शी मटर धजसका कुल मूल्य र 88,200/- ( रुपया अठ्ठासी हजार दो सौ मात्र ) है , को सीमा श्ल्ल्क अधधधनयम 1962 की धारा 7(1) (सी) के तहत जारी Notification No. 63 /94 - Cus (NT) dated 21.11.1994 के प्रावधानों का उल्लंघन करके आयात करने का प्रयास धकय र्या है , को इू्सी अधधधनयम की धारा 111 (बी) के अंतर्गत अधधग्रहीत धकये जाने का आदे श करता हयँ।ंं चूँधब उक्त बरामद 2940 धकलोग्राम मटर की सावगजाधनक नीलामी की प्रधक्रया के द्वारा रु 88,2001- ( रुपय अठ्ठासी हजार दो सौ मात्र ) में नीलाम कर धदया र्या तथा नीलामी से प्राू्त धनराधश रू् 88,200/ को टी आर.6 चालान सं 01 धदनां कं 27.10.2020 के द्वारा स्टे ट बैंक ऑफ़ इं धडया, पधलया-कलां में जमा कर Customs Appeal No.70079 of 2024 6 धदया र्या, अत: मै उक्त धनराधश रु 88,200/- को भारत सरकार के िाते में समायोधजत करने का आदे श दे ता हँ ंं।
(ि) मै अधभग्रहीत वाहन रधज. सं UP-31/AT-4492 मूल्य र० 3,00,000/- को सीमा शुंूल्क अधधधनयम. 1962 की धारा 115(2) के अंतर्गत अधधग्रहण करने का आदे श दे ता हँ एवम अधधकृत वाहन स्वामी पर रु०. 30,000/- (र तीस हजार मात्र) का धवमोचन शुल्क लर्ाने का आदे श करता हँ । चूँधक उक्त अधभग्रहीत वाहन रधज. संख्या UP-31/AT-4492 की सामाधयक उन्मुखक्त र० 30,000/- की नर्द प्रधतखतत जमा करने एवमू् वाहन के अधभग्रहण मूल्य के बराबर बां ड धनष्पाधदत करने पर वाहन स्वामी के पक्ष में कर दी र्यी थी। अतः मैं सामधयक उख्तक्त की उक्त राधश में से र० 30,000/, वाहन के धवमोचन श्ल्ल्क के एबज में सीमा श्ल्ल्क धबभार् के पक्ष में समायोधजत करने का आदे श करता हँ ।
(र्) श्री राकेश कुमार धनषाद प्त्र श्री राम नरे श धनषाद, धनबासी- मोहल्ला लधलता नर्र सैधरी, धमदधनया, थाना सदर, धजला- लिीमपुर िीरी (उ0 प्र0) पर सीमा शुल्क अधधधनयम 1962 की धारा 112 के अंतर्गत र 5000- (रुपया पाँ च हजार मात्र) जुमाग ना/अथगदण्ड लर्ाये जाने का आदे श करता हं ।
च) श्री रोधहत पुत्र ध्री राकेश, धनवासी- म.संख्या-1 7, मोहल्ला लधलता नर्र सैधरी, धमदधनया, थाना ४४ सदर, धजला- लिीमपुर िीरी (उ0 प्र0) पर सीमा शुल्क अधधधनयम 1962 की धारा- 112 के अंतर्गत रु 5000/- (रुपया पाँ च हजार मात्र ) जुमाग ना/अथगदण्ड लर्ाये जाने का आदे श करता हँ ।
( द)श्री ओम प्रकाश मू्ंेधशया, स्बामी मधेधशया टर े डू्स, धनवासी- मेन रोड, सम्पूणाग नर्र, धजला िीरी, उ.प्र, पर सीमा शुल्क अधधधनयम 1962 की धारा- 1 12 के अंतर्गत रु 5000/- (रपया पाँ च हजार भातू् I जुमाग ना/अथगदण्ड लर्ाये जाने का आदे श करता हँ ।"
2.7 Aggrieved appellant have filed appeal before the Commissioner (Appeal), which have been disposed off as per the impugned order referred in para-1 above.
2.8 Aggrieved appellants have filed this appeal.
3.1 I have heard Shri Nagendra Krishna Advocate for the appellant and Shri Santosh Kumar, Authorised Representative appearing for the revenue.
Customs Appeal No.70079 of 2024 7 4.1 I have considered the impugned order along with the submissions made in appeal and during the course of arguments.
4.2 Appellant has challenging the impugned order stated following grounds:-
4.3 On 05.10.2020, the SSB officers of Sumernagar, Lakhimpur intercepted vehicle No.UP-31/AT-4492 loaded with foreign peas, illicitly being transported from Nepal to India through unauthorized routes and handed over to the officers of the Customs (P) Division. The vehicle was intercepted at a place just 6 kms from the Indo Nepal Border near pillar No 764/5. The persons who were present in the intercepted vehicle on being asked did not produced any documents in respect of the goods in the vehicle, and stated that the owner of vehicle was accompanying and would meet them in Lakhimpur Mandi. They will be getting Rs 5000/- towards the cartage of the said goods.
No person came forward claiming the ownership of the illicitly procured goods at the time of interception or thereafter. The goods were thereafter seized under provisions of Customs Act, 1962 as being imported into India through Indo Nepal Border through unauthorized routes. The seized peas being perishable in nature were auctioned and the sale proceeds of Rs 88,200/- were deposited in the government exchequer vide TR-6 Challan No 1 dated 27.01.2020.
4.4 After completion of investigations, the show cause notice was issued proposing confiscation of seized peas and the seized vehicles. None filed any reply to the show cause notice. It was only during the course of personal hearing on 24.08.2021 dated appellant made claimed to the auctioned goods through his advocate. I find that claim made by the appellant towards the seized goods which has been made after lapse of more nearly an year is badly hit by the delay and latches in making the claim and cannot be entertained. In case of Hanuman Singh [2024:AHC-LKO:73276] Hon'ble Allahabad High Court has dismissed the writ petition quoting the various decisions of Hon'ble Supreme Court on the issue of delay and latches. In Customs Appeal No.70079 of 2024 8 case of Mrinmoy Maity v. Chhanda Koley and Others [Order dated April 18, 2024 in Civil Appeal Nos. 5027 of 2024] Hon'ble Supreme Court has observed as follows:
"9. Having heard rival contentions raised and on perusal of the facts obtained in the present case, we are of the considered view that writ petitioner ought to have been non-suited or in other words writ petition ought to have been dismissed on the ground of delay and latches itself. An applicant who approaches the court belatedly or in other words sleeps over his rights for a considerable period of time, wakes up from his deep slumber ought not to be granted the extraordinary relief by the writ courts. This Court time and again has held that delay defeats equity. Delay or latches is one of the factors which should be born in mind by the High Court while exercising discretionary powers under Article 226 of the Constitution of India. In a given case, the High Court may refuse to invoke its extraordinary powers if laxity on the part of the applicant to assert his right has allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action.
10. The discretion to be exercised would be with care and caution. If the delay which has occasioned in approaching the writ court is explained which would appeal to the conscience of the court, in such circumstances it cannot be gainsaid by the contesting party that for all times to come the delay is not to be condoned. There may be myriad circumstances which gives rise to the invoking of the extraordinary jurisdiction and it all depends on facts and circumstances of each case, same cannot be described in a straight jacket formula with mathematical precision. The ultimate discretion to be exercised by the writ court depends upon the facts that it has to travel or the terrain in which the facts have travelled.
Customs Appeal No.70079 of 2024 9
11. For filing of a writ petition, there is no doubt that no fixed period of limitation is prescribed. However, when the extraordinary jurisdiction of the writ court is invoked, it has to be seen as to whether within a reasonable time same has been invoked and even submitting of memorials would not revive the dead cause of action or resurrect the cause of action which has had a natural death. In such circumstances on the ground of delay and latches alone, the appeal ought to be dismissed or the applicant ought to be non-suited. If it is found that the writ petitioner is guilty of delay and latches, the High Court ought to dismiss the petition on that sole ground itself, in as much as the writ courts are not to indulge in permitting such indolent litigant to take advantage of his own wrong. It is true that there cannot be any waiver of fundamental right but while exercising discretionary jurisdiction under Article 226, the High Court will have to necessarily take into consideration the delay and latches on the part of the applicant in approaching a writ court. This Court in the case of Tridip Kumar Dingal v. State of W.B., (2009) 1 SCC 768 has held to the following effect:
"56. We are unable to uphold the contention. It is no doubt true that there can be no waiver of fundamental right. But while exercising discretionary jurisdiction under Articles 32, 226, 227 or 136 of the Constitution, this Court takes into account certain factors and one of such considerations is delay and laches on the part of the applicant in approaching a writ court. It is well settled that power to issue a writ is discretionary. One of the grounds for refusing reliefs under Article 32 or 226 of the Constitution is that the petitioner is guilty of delay and laches.
57. If the petitioner wants to invoke jurisdiction of a writ court, he should come to the Court at the earliest reasonably possible opportunity. Inordinate Customs Appeal No.70079 of 2024 10 delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have already been disposed of or settled or where the rights of third parties have accrued in the meantime (vide State of M.P. v. Bhailal Bhai [AIR 1964 SC 1006 : (1964) 6 SCR 261], Moon Mills Ltd. v. Industrial Court [AIR 1967 SC 1450] and Bhoop Singh v. Union of India [(1992) 3 SCC 136 : (1992) 21 ATC 675 :
(1992) 2 SCR 969]). This principle applies even in case of an infringement of fundamental right (vide Tilokchand Motichand v. H.B. Munshi [(1969) 1 SCC 110], Durga Prashad v. Chief Controller of Imports & Exports [(1969) 1 SCC 185] and Rabindranath Bose v. Union of India [(1970) 1 SCC 84])."
4.5 In absence of any challenge by any other person who was involved in the handling and transportation of the illicitly imported peas, I am not in position to admit the challenge made by the appellant in respect of the confiscation of peas. It would lead to situation where the vehicles used for transporting the illicitly sized peas are held liable for confiscation, and the impugned peas are contrarily held not liable for confiscation. Impugned order takes note of all the statements recorded under Section 108 of Customs Act, 1962 whose evidentiary value has been upheld by the Hon'ble Supreme Court in series of decisions as follows:
Surjit Singh Chabbra [1997 (89) E.L.T. 646 (S.C.)] Naresh J Sukhwani [1996 (83) E.L.T. 258 (S.C.)] K I Pavunny [1997 (90) E.L.T. 241 (S.C)] It is also noted that none of the statement was retracted by any person, nor have been discredited by way of cross examination in any proceedings.
Customs Appeal No.70079 of 2024 11 4.6 Thus in absence of any appeal filed by any other person, involved in the case I uphold the order of confiscation of peas and apportioning of the sale proceeds to the government exchequer.
4.6 Now coming to the penalty imposed upon the appellant upon the appellant under Section 112 of the Customs Act, 1962.
I find the appellant was neither intercepted nor was named by any one during the course of investigations. It was only during the adjudication proceedings at time of personal hearing that counsel made claim on the behalf of appellant towards the seized peas. No specific role has been assigned to the appellant in the entire act of illicit transportation of these goods from Nepal to India. However for making a delayed claim in respect of the seized goods I uphold the penalty imposed upon the appellant under section 112 but reduce the penalty imposed upon the appellant to Rs.2,500/-.
5.1 Appeal is partly allowed.
(Dictated and pronounced in open court) (SANJIV SRIVASTAVA) MEMBER (TECHNICAL) akp