TMI Blog2013 (1) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... engaged Shri Nurul as his driver for transportation of the potato on the said truck for a consideration of Rs.52,000/-. After the truck was intercepted by the Customs Officers at Chagolia MVI Gate, Tripura, Assam, Shri Nurul who claimed to be not in possession of the driving licence, had been replaced by the Appellant with another driver for completion of the transportation of the said goods, initially agreed to have been delivered by Shri Nurul at Ambasa, Tripura. Thus, it can be inferred from these circumstances that the Appellant who was eager and committed to completing the transaction from its initial place of loading to the place of its delivery, must be aware of the fact that Phensydel New Cough Linctus along with the potato had been loaded on the said truck. Therefore, agreeing with the finding of the Commissioner that the Department could able to link the chains of the circumstantial evidences in establishing that the transportation of the said Phensydel New Cough Linctus along with the potato, was within the knowledge of the Appellant. In these circumstances, the said vehicle No.WB-63-3575 is liable for confiscation under Section 115(2). However, as at the time of sei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dated 06.03.2010, the driver of the truck, Mr. Hachimuddin Miah informed the investigating officers that the owner of the said truck was Mrs.Pampa Saha, wife of Mr. Prasanta Saha. He has stated that on 03.03.2010 at around 6.00 to 7.00 pm, Shri Prasanta Saha came to his house and informed him that his truck had been detained at Chagolia M.V.I. Gate (Assam) by the Transport Department because of illegal driving by the driver, and he requested him to drive the potato loaded truck to Ambasa, Tripura and promised to give him Rs.2,000/- and also paid an advance of Rs.1,000/- as road expenses. He has stated that it was not known to him that apart from potato, Phensedyl New Cough Linctus was also loaded on the truck. Shri Prasanta Saha also did not mention about it, wherefrom the potato or the Phensedyl New Cough Linctus was loaded on the truck. 2.4. The statement of Md. Jaynal Hussain was also recorded on 06.03.2010, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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. On 03.03.2010 at about 7.00 pm, the driver (Shri Nurul) informed him that he had fixed one trip of potato for Ambasa, Tripura, Assam and the freight charge was fixed at Rs.52,000/- for transportation of 20 tons of potato. He had accepted the same and accordingly, goods were loaded and the truck left for Ambasa. On the same day, Shri Nurul informed him over phone that the MVI Officers of Chagolia MVI Gate (Assam) detained/seized the registration book of the truck, as he (Shri Nurul) did not possess any driving licence. Since Shri Nurul did not turn up, he went to the MVI Gate along with another driver and one helper, and found that the said truck was loaded with potato and parked at Chagolia MVI Gate. The MVI Officers handed over him the registration book of the truck, a seizure list, one road challan of potato, insurance documents and keys of the truck. From the said challan, he came to know that the loaded pota ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf 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 transportation of the potato and not the impugned goods. After the vehicle was seized by the MVI Department at Chagolia MVI Gate, Tripura, Assam, the Appellant had engaged another truck-driver for delivery of the goods loaded on the truck. He also contended that there is no evidence, whatsoever brought on record by the Department, in establishing the knowledge of the Appellant that the impugned goods were loaded on the truck No.WB-63-3575 along with the loaded potato. In the absence of any knowledge of the Appellant authorized to operate the said truck, about the carriage of the impugned goods on the said vehicle, the said vehicle cannot be confiscated under Section 115(2) of the Customs Act, 1962. In support of his contention, he has referred to the following decisions of this Tribunal: i) Kamal Jain vs. CC, Calcutta 2001( 138) ELT 614 (Tri.-Kolkata); ii) Md. Liakat Ali vs. CC(P), Kol(WB) 2008(222) ELT 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. of potato valued at Rs.48,375/- (packed in 215 numbers of gunny bags), while proceeding to Ambasa, Tripura in taking an unauthorized route under fabricated documents, was seized by the Customs Officers on 06.03.2010. All the bottles containing Phensydel New Cough Linctus were absolutely confiscated under Section 113(b) (d) of the Customs Act, 1962 and all the bags containing potato were also confiscated under Section 119 of the Customs Act, 1962. However, the said confiscated goods had not been claimed by any one. As regards the role of the Appellant being the Power of Attorney holder for operation of the truck on behalf of the owner, Smt. Pampa Saha, the learned Adjudicating Authority at para 7.6 (page 14-15 of the impugned Order) has observed as under: 7.6. As regards Smt. Pampa Saha, though the truck bearing registration number WB-63-3575 is registered in her name, I find that the actual management,control ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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. Bhoormull [1983 (13) ELT 1546 (SC)] has maintained, "smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. If he fails to establish or explain those facts, an adverse inference of facts may arise against him. It is obvious that Shri Prasanta Saha was trying to shield the owner office of the goods/persons responsible for dispatch of the same by not divulging their identity to the investigation. Therefore, Shri Prasanta Saha is found to have abetted in the transportation of the consignment of Phensedyl Cough Linctus (New) so recovered from his truck and found liable to confiscation under the provisions of Section 113 of the Customs Act 1962 for reasons as discuss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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