TMI Blog1985 (11) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants had entrusted the vessel to the Tindel Shri Dawood Ismail and they had taken an undertaking to ensure that he will take all precautions in compliance with law. This was a safeguard for the appellants. The Tindel was authorised to appoint the crew members on the voyage in question which commenced with the sailing of the vessel on 26-2-1978 from India and the vessel reached Basra and loaded wet dates for Bombay, as per the agreement between the appellants and the importers of the dates. On arrival in Bombay on 13-4-1978 the vessel anchored at dutiable anchorage and on 14-4-1978 a search was carried out in the vessel by the Customs Officers which resulted in the seizure of eight gunny bags and two cartons containing various types of goods of foreign origin collectively valued at Rs. 86,412/-at the market rate. These ten packages were recovered from the hatch of the vessel. The packages were not declared in the Private Property list of the crew members or in the manifest of the vessel. These goods were claimed by the Tindel and the remaining crew numbering sixteen persons. The Advocate submitted that the crew members had used their savings for purchase of the various consume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the smuggling of the contraband goods was with his knowledge and connivance. He, therefore, did not urge this point further. He added that he would rely on the two decisions of the Tribunal vide 1985 (21) E.L.T. 936 and 1985 (21) E.L.T. 776. Relying on the ratio of these decisions, he stated that the discovery of contraband goods would not amount to use of the vessel in smuggling and that the quantum of fine in lieu of the confiscation of the vessel was disproportionate in the circumstances of the case. The value of the vessel was Rs. 3,20,000/- and the market value of the contraband goods was Rs. 86,412/-. The Addl. Collector had confiscated these contraband goods and also levied penalty of Rs. 2,000/- on the Tindel and Rs. 1,500/-each on the remaining crew members. Since the culprits had been punished, the punishment on the appellants was quite severe. Shri Gagrat also relied on the judgment of the Bombay High Court vide 1976 Bombay Law Reporter page 675 to show that confiscation of a vehicle was not mandatory under Section 115(2) of the Customs Act. He, further, relied on the judgment of the Calcutta High Court AIR 1959 p. 237 in the case of Everest Orient Lines to show that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted in this statement. Similarly, the statements of other crew members also confirmed the aforesaid concealment of the contraband goods. Regarding the Addl. Collector s order of confiscation of the vessel under Section 115(2) of the Customs Act and giving an option for redeeming it on payment of fine of Rs. 80,000/-, the S.D.R. stated that this action was quite legal as smuggled goods were recovered from this vessel. He read out the interpretation of Section 115(2) of the Customs Act from Shri T.P. Mukherjee s Commentaries on Customs Act, Third Edition p.345 in support of his submission. The S.D.R. submitted that the imported goods in the 10 packages were smuggled and hence the order of confiscation of the vessel was correct. Accordingly, he prayed that the appeal should be dismissed. 5. We have examined the submissions on both sides. Though the owner of M.S.V. Faizi Husaini had taken precautions by way of bond from the Tindel Shri Dawood Ismail, it is apparent that the vessel had been used in smuggling of the contraband goods. It is also accepted that these goods were not declared in the private property list of the crew members. There is, therefore, no dispute regarding th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision and not a mandatory one. It can be resorted to only if the circumstances justify the same. In the present case the adjudicating authority has thought it fit to invoke this provision and to confiscate the vessel thereunder. The order of confiscation is, therefore, correct. As regards the Advocate s submission that considering the value of the vessel and the value of the contraband goods, the redemption fine is high and, therefore, some relief should be given, this is the only surviving plea left with us in this behalf. The Addl. Collector fixed the redemption fine in lieu of confiscation of the vessel to approximately 100% of the value of the contraband goods carried in the vessel. Considering the fact that the owner is not to be blamed for the aforesaid act of smuggling and that he had taken precautions against the misuse of the vessel as also the fact that crew members have lost the goods sought to be smuggled, besides being levied with penalties, we are inclined to accept the Advocate s request for leniency. The redemption fine for the vessel is, accordingly, reduced from Rs. 80,000/- to Rs. 10,000/- (Rupees ten thousand) only. 6. As regards the appellants submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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