TMI Blog2006 (10) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... se for consideration are on 23-9-2003, Customs officers intercepted the jeep bearing registration No. U.P. 32 Z-4681 near Village Kathwalia while coming from Barhani side. On search of jeep before two independent witnesses, it was found that 165 Kgs. of Cardamom (Small) and 1680 numbers of ladies panties of foreign origin, packed in 5 bags was recovered. On the spot statement of the driver of the jeep was taken, in which he admitted that the goods were loaded near Barhni jungle which is near lndo-Nepal border on the instruction of one Shri Govind Ji. Subsequently, the officers recorded the statement of the appellant and the driver of the jeep. The officers seized the jeep in which offending goods were found. On completion of the investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that he had appointed one Shri Akbar Husain as the driver and he is not aware why Shri Vinod Kumar Soni was driving the vehicle at the time of interception and was not appointed by appellant. It is his submission that even if it is considered that Shri Vinod Soni was incharge of the vehicle, it has not been proved by the Department that the goods which were seized were of smuggled nature and the driver was aware of the same. He relies upon the decisions of the Tribunal in the case of Jahed Mondal v. Commissioner of Customs (P), West Bengal as reported at 2002 (149) E.L.T. 319 (Tri.- Kolkata), 2002 (145) E.L.T. 141 (Tri.- Kolkata), 2002 (149) E.L.T. 380 (Tri.- Kolkata), 2002 (145) E.L.T. 111 (Tri.- Kolkata) and 2003 (159) E.L.T. 749 (Tri.- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for the driver of the vehicle during the relevant time to ask for and demand the documents which was not done by him. It is an admitted fact that Shri Vinod Soni was driving the vehicle during the relevant time that is to say he was in-charge of the conveyance, in the absence of any evidence that the seized goods were in licit possession of the driver of the conveyance in which the seized goods was transported, is liable to be confiscated and will fall within the ambit of provisions of Section 115(2) of the Customs Act, 1962. Provisions of Section 115(2) read as under :- Any conveyance or animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation, unless th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loaded were not contraband and also from the fact that nobody claimed ownership of the goods, would indicate, there was something amiss. As such the said confiscation of the vehicle under Section 115(2) is correct and there is no need for interference as regards the confiscation. 7. As regards, the penalty imposed on the current appellant under Section 112(b) of the Customs Act, 1962, it is very clear from the records that the said provisions cannot be made applicable to the current appellant. It is on record that the driver Shri Vinod Soni/Shri Akbar Husain had indicated that the current appellant was not aware of the vehicle being used for ferrying the contraband goods from one place to another. In the absence of any direct evidence, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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