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2021 (10) TMI 855 - AT - CustomsLevy of Penalty u/s 114 of the Customs Act, 1962 - Smuggling - prohibited goods or not - Export of Red Sander logs under cotton tufted floor mats- colour – ASTD - also the fasteners (rivets) found on the Customs Sealing Point (latches) and Steamer Agent‘s Sealing Point (latches) of the container were found tampered - illegal omissions - scope of Section 107 IPC - HELD THAT:- The appellants plead total ignorance about the attempted smuggling of red sanders. The contention of the appellants that they kept the blank signed letter heads in the vehicle at the time of sale is too fanciful to digest. It is admitted by Shri A. Mohamed Naseer that there was omission on his part by giving the signed blank letter heads to Shri Farooq Basha. There is also an admission on the part of Shri Farooq Basha that he committed a mistake by leaving the said blank letter heads in the vehicle at the time of sale. These are serious omissions on the part of the appellants which has aided in the attempt for smuggling. Whether omissions are illegal omissions so as to be an ingredient to fall within the third limb of Section 107 IPC? - HELD THAT:- An omission can be considered to be illegal if what has been omitted was required to be done by such person under law. Thus, there should have been an obligation to do a particular act under some law. Such obligation may be under any Act, Rules, Regulations, Instructions. In the present case, entry into CFS/Port is restricted. Access to this area can be obtained only if a request is made by the transport agency along with recommendation letter of the Trailor Organizers‘ Association. It is also necessary to give details of the driver and the trailer truck/lorry in such applications. After obtaining the gate pass, the transport agency is required to keep a record with regard to the movement of the vehicles for which he has obtained gate pass. These are regulations, which the appellants have to oblige with care and caution. The department need not establish facts beyond reasonable doubt. In quasi-judicial proceedings, the test is that of preponderance of probabilities. These are facts which stands admitted/established and also facts which are probable. When the established facts and the probable facts give a wholesome connection, the test of preponderance of probability would stand established. The signatures in the letters being admitted, the appellant cannot wriggle out of the liability by putting forward a plea of passing over blank signed letter heads by mistake. Similarly, the vehicle being owned by Shri Farooq Basha, he cannot escape by contending that during the relevant time the vehicle was sold. The case of appellants that blank letter heads were left by omission in the vehicle which was sold is only put forward to get out of the charges levelled against them and cannot be accepted - department has been able to establish the guilt/charge of abetment on the part of appellants. The penalties imposed on each of the appellants are legal and proper - Appeal dismissed.
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