TMI Blog1994 (1) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, the Police Authorities of Morvi apprehended one truck No. GRW 1130 on 1-11-1983 on National Highway Road at Morvi. Two persons got down from the said truck and disappeared. However, the Police authorities have apprehended the driver of the truck Shri Gul Mohmed Mithakhan Notiar. On search of the truck by the Police officers, the truck was found to have been loaded with the 250 drums of poultry drugs additives consigned by M/s. M.J. International of Gandhidham to M/s. M.J. International, Bombay under receipt No. 2899 dated 31.10.1983 issued by New Gori Transport Co., Gandhidham. Underneath these drums, they also found 30 packages wrapped in gunny covers which contained 60 VCRs made in Japan valued at Rs. 12,00,000/-. The driver of the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 55,000/- from the provisional bond executed at the time of provisional release of 250 drums towards redemption fine. He also ordered absolute confiscation of the truck GRW 1130 under Sec. 115(2) of the Customs Act. He imposed, inter alia, penalty of Rs. 50,000/- on Shri Mohamadkhan N. Pathan and Rs. 15,000/- on M/s. M.J. International. In the present appeals, we are only concerned with the order of confiscation relating to 250 drums of poultry drugs additives and appropriation of a sum of Rs. 55,000/- towards redemption fine and imposition of penalty of Rs. 15,000/- which is challenged by M/s. M.J. International and also the order imposing penalty of Rs. 50,000/- on the other appellant Shri Mohamadkhan N. Pathan. 3. Shri P.M. Dave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the lorry in the presence of Customs authorities and the lorry was sent out of the Free Trade Zone under supervision of the Customs. Hence, no nexus of the appellant with the smuggled VCRs can be alleged and they did not do any act of omission or commission rendering these 250 drums of poultry drugs additives, liable to confiscation even under Sec. 119 of the Customs Act. Hence, no penalty is imposable on them. Moreover, confiscation of these goods, which were transported under regular lorry receipt, after being loaded under Customs supervision, as goods used for concealing the smuggled VCRs, is also not sustainable. The Addl. Collector s finding is that they are required to observe all the precautions to ensure that the goods are not us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argument of Shri Habbu, the ld. advocate, he pleads that though no evidence has been brought out to show the mens rea of the appellants M/s. M.J. International in so far as 250 drums of poultry drugs additives are concerned, these drums were used for camouflaging the smuggled VCRs and they are the goods used for concealing the goods. Hence, under Section 119, irrespective of mens rea or otherwise, such goods used for concealing are liable to confiscation. 6. After hearing both the sides, we find that the facts are not disputed. So far as Shri Mohamadkhan N. Pathan is concerned, the only evidence against him is that the lorry from which VCRs were recovered stands in his name being the registered owner. However, Shri Mohd. Khan Navobkhan P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is evident that the loading of the VCRs under the declared goods covered by lorry receipt was done, much after the lorry left the Kandla Free Trade Zone. The appellants, M/s. M.J. International are found to be genuine despatcher of the goods and if some goods are illegally loaded on this vehicle by the Truck driver and re-arranged the goods so as to conceal the illegal goods, in our view such a case should not be visited with fine or penalty. Section 119 has to be viewed in the perspective of the facts of each case and cannot be applied in a routine or mechanical fashion. In this view, we set aside the fine of Rs. 55,000/- and also the penalty of Rs. 15,000/- imposed on M/s. M.J. International. 8. Consequential relief, to follow, where ..... X X X X Extracts X X X X X X X X Extracts X X X X
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