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TMI Blog1992 (10) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... mption fine of Rs. 50,000.00. A personal penalty of Rs. 2,000.00 was imposed on the appellant. 2. The facts of the case are that on 20-12-1989, the Customs (Preventive) Officers, Lucknow, visited Pulbhatta and on the basis of pre-intelligence, they intercepted a Vehicle No. DDA 9304 at about 21.30 hrs. The vehicle was found carrying 587 pcs. of Konica coloured photo films of Japanese origin, which were concealed inside the doors as well as back seat of the vehicle. There were six persons in the vehicle. The said vehicle which was a Maruti Van, was taken to the Customs Office along with the occupants. On interrogation, they told that these contraband goods were being transported from Nepal and the same were to be handed over to a photograph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Kanubhai Kalpabhai Patel v. Collector of Customs and Central Excise. 4. The learned J.D.R., Shri B.B. Sarkar contended that the driver of the Maruti Van in question was the person who was appointed by the appellant and since he was in the knowledge of the smuggled character of the goods in question, the vehicle is liable to be confiscated. He also pointed out that the circumstances will go to show that the appellant had the knowledge about the conveyance of the smuggled goods in the vehicle and therefore, he is liable to be penalised under Sec. 112 of the Customs Act, 1962. 5. We have considered the submissions of both the sides. The points that arise for our determination are as follows :- (i) whether the confiscation of the Maruti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son appointed by him. The reason is that once when the vehicle is found carrying the smuggled goods, the burden shirts on to the appellant to prove that the same are carried in the vehicle without the knowledge of either himself or his driver. The decision relied on by the learned Consultant in the case of Ashraf Abdul Karim is not applicable to the facts and circumstances of this case. In that particular case, there was no evidence that at the time when the passengers boarded a taxi, the appellant had the knowledge about the contents of the packages which the passengers brought with them. However, the Additional Collector merely stated in his order that the appellant carried the contraband goods knowingly, without any evidence. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he liability, he must prove the existence of facts upon which the Tribunal should determine me matter. Under Sec. 115(2) of the Customs Act, 1962 it is for him to prove that the vehicle was used for the carrying of the photo-films without his knowledge or without the knowledge of the driver, He merely stated that Siraj Ahmad who was found to be driver in the Van in question, was not the driver appointed by him. If that were to be so, the burden was on him to show that there was another Siraj Ahmed who was the real Ahmad to whom the appellant had left the vehicle. He did not produce the driver to rebut the case. The burden is, therefore, on the appellant to prove the fact that the driver of the vehicle in question, who was appointed by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e total cost of the Van in question at the relevant time was Rs. 70,000/- (approx). However, taking into consideration the overall aspects of the case we reduce the Redemption Fine to a sum of Rs. 25,000.00 (Rupees Twenty five thousand) only. 8. As far as the second point is concerned, we have to find out whether the imposition of penalty on the appellant is in accordance with law. It is now seen that there is no evidence in this case to show that he had any knowledge about the conveyance of the smuggled goods in his Van. There were also no circumstances in this case to show that the appellant had any such knowledge. The statements of the inmates of the Van also do not show that the appellant had any knowledge thereof. The order of the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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