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TMI Blog2013 (1) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 bottles of Phensedyl New Cough Linctus (100 ml. each) packed in 150 bags along with 215 gunny bags of potato weighing 9675 Kgs. There were no covering documents in support of transportation/possession/purchase/sale of such a huge quantity of Phensedyl New Cough Linctus . 2.2. It was found by the Officers that the transportation of the said Phynsedyl New Cough Linctus was in a very unique manner as four original company packing cartons of Phensedyl New Cough Linctus were put in a single bag, which were found without any marking/symbol and then the same were secreted/concealed beneath the loads of potato bags. Further, from the Road Challan of M/s. Monalisa Potato Suppliers, Dhupguri, Jalpaiguri (WB) showing the sale of 305 bags (weighing 15,250 Kgs.) of potato to M/s. Saha Potato Co., Tripura through Truck No.WB-63-3575, but on unloading the potatoes from the said truck, it was found that it contained only 215 bags (weighing 9,675 Kgs.). Hence, it was assumed that a deliberate attempt was made to inflate the quantum of potato bags on the body of the Challan to create an impression that besides potato, the truck in question was carrying no other goods. 2.3. In his statement date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or Phensedyl New Cough Linctus . The truck bearing Registration No.WB 63-3575 was also used for transporting the goods meant for illegal export to Bangladesh. In view of the said facts and circumstances, the DRI Officers had reasons to believe that the driver and helper/handyman-cum-cleaner of the truck bearing Registration No.WB-63-3575 were concerned and were found carrying/transporting the goods i.e.,30,000 bottles of Phensedyl New Cough Linctus valued at Rs.21,60,000/-, in contravention of various provisions of the Customs Act, 1962 and were liable to be seized under Section 110 of the Customs Act, 1962 and accordingly, the said goods along with the vehicle were seized on 06.03.2010, collectively valued at Rs.25,08,375/-. 2.6. Statement of Shri Prasanta Kumar Saha was recorded on 15.03.2010. In his statement, Shri Saha informed that the truck bearing Registration No.WB-63-3575 stands in the name of his wife, Shrimati Pampa Saha and due to her illness, by a General Power of Attorney, authorized him to do all necessary works relating to the said truck. He has stated that he was engaged in the business of raw fruits and vegetables and also managing the said vehicle of his wife. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also directed confiscation of the 9675 Kgs. of potato valued at Rs.48,375/- under Section 119 of the Customs Act, 1962. Further, he directed confiscation of the truck bearing Registration No.WB-63-3575 valued at Rs.3,00,000/- under Section 115(2) of the Customs Act, 1962, but allowed the same to be redeemed on payment of fine of Rs.1,50,000/- in terms of Section 115(2) of the Customs Act, 1962. He has imposed a penalty of Rs.50,000/- on the Appellant in terms of Section 114 of the Customs Act, 1962 and dropped the proceedings against Shri Hachimuddin Miah, Md. Jaynal Hussain and Smt. Pampa Saha. 3. Aggrieved by the said Order, the Appellant, Shri Prasanta Saha had filed the present Appeal challenging the personal penalty and confiscation of the vehicle. 4. Learned Advocate for the Appellant has submitted that even though the Appellant used to manage and look after the said truck bearing No.WB-63-3575 on behalf of Shrimati Pampa Saha, being the Power of Attorney Holder, in the present case, he had no knowledge of the loading of the impugned goods, viz. Phensedyl New Cough Linctus on the said truck by the earlier driver, Shri Nurul. He had allowed Shri Nurul to book the truck for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, Shri Prasanta Kumar Saha, arranged another driver and helper to deliver the impugned goods loaded on the vehicle. Therefore, it could be safely concluded that the Appellant was fully aware of the fact that Phensedyl New Cough Linctus was transported along with the potato and being the main item ought to be delivered to the consignee. Further, the circumstance under which the seizure was made when the vehicle was being loaded with potato and the impugned goods were concealed beneath it, indicates that the impugned goods were meant for illegal export to Bangladesh through a route other than the route in violation of the provisions of Section 7(1)(c) of the Customs Act, 1962 and Section 11-K ibid read with Sections 3 & 4 of the Foreign Trade (Development & Regulations) Act, 1962. Hence, the truck has been rightly confiscated and penalty was also rightly imposed on the Appellant. 6.1. Heard both sides and perused the records. It is not in dispute that the truck bearing Registration No.WB-63-3575 loaded with 30,000 bottles of Phensydel New Cough Linctus (100 ml. each) packed in 150 numbers of bags of different types and sizes valued at Rs.21,60,000/- along with a load of 9,675 Kgs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of the exact nature of the goods, owner of the goods, the person who loaded the same in his truck and where the same was to be unloaded. From this, the male fide on part of Shri Prasanta Saha and his connivance with the said Shri Nurul in transportation of the goods that are liable to confiscation can be reasonably inferred. Further, it is unlikely that he did not know the proper address, contact number etc. of Shri Nurul whom he employed and entrusted his truck with. The Hon'ble High Court of Gujarat in the case of M/s Manilal Bhanabhai Patel vs Union of India [1992 (060) ELT99] in para 18 has mentioned that "....in this type of cases of smuggling of goods the activity is done in a clandestine or stealthy manner. Therefore, it would be difficult or rather impossible to have direct evidence to establish that goods were brought for the purpose of being illegally exported. Still however, when there is no direct evidence, from the circumstantial evidence a reasonable and probable inference can be drawn from the facts which may emerge on record..." Further in para 19 the Hon'ble Court while referring to the pronouncements of the Apex Court in the case of Collector of Customs vs D. B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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