TMI Blog2016 (1) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... se notice issued to the appellants. In view of the above observation and the settled proposition of law penalties have been rightly imposed upon the appellants and appeals filed are required to be dismissed. - Appeal No. C/377-378/2011 - ORDER No. FO/A/75834-75835/2015 - Dated:- 18-12-2015 - SHRI H.K.THAKUR, MEMBER(TECHNICAL) For the Petitioner : Shri K.P. Dey, Advocate Shri Shyamal Dey Advocate For the Respondent : Shri S. K. Naskar, A.C, (AR) ORDER Per Shri H.K.Thakur These appeals have been filed by the appellants against OIO No. 02/COMM/CUS/SLG/11-12 dt 26/8/2011 passed by Commissioner of Customs, Central Excise Service Tax Siliguri. 2. Sh. K. P. Dey (Advocate) and Sh. Syamal Dey (Advocate) appeared on behalf of the appellants. Sh. K. P. Dey argued that Sh. Bhumraj Daimary and Sh. Swmdwn Daimary and respectively the owners of vehicles numbers AS-01-BC-9353 and AS-010-BC-9363 on which redemption five of ₹ 3 lakh ₹ 1.75 lakh respectively has been imposed by the Adjudicating authority. That a penalty of ₹ 2 lakh each has also been imposed upon the appellants under Section 114 (i) of the Customs Act 1962. That both these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atrix. 4.1 On 30/6/2010 two vehicles were found loaded with Red sanders wood by DRI at Leucipokhri area conceded in Plaster of Paris powder. Sh. Binando Boro Driver of vehicle No. AS-01-BC-9353 stated in his statement dt 30/6/2010, inderalia that:- i) by profession he is driver and has been driving vehicles for last 8 (eight) years. ii) He has been driving the truck No. AS-01-BC-9353 for last two/two half months. Before that he drove another vehicle of the same owner. The owner of his vehicle is Bhumraj Daimary, S/o Late Bhuban Daimary, having two houses in Assam, one at Chapaguri area in the district of Bongaigaon, Assam and another at Lokhra Road area of Guwahati. The owner of the other truck bearing Registration No. AS-01-BC-8363, held under seizure along with his vehicle, is related brother of the owner of his vehicle. iii) The hire contract of his vehicle is arranged by the owner of the vehicle himself and as and when instructed by his owner he drives the vehicle for loading and transporting goods. His monthly salary is ₹ 2000.00 and receives ₹ 150.00 daily as food bill while moving on hire. iv) On 20/6/2010 he was told by his owner Shri Bh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loaded vehicle and after unloading the logs of wood in some place around Silliguri the party would hand over the vehicle loaded with P.O.P. Cement Powder only. He would further proceed to Bongaigaon. 4.2 Identical statement was given by Sh. Rupak Kumar Nath, driver of vehicle No. AS-01-BC-8368 belonging to Sh. Swmdwn Daimary. 4.3 Statements of both Sh. Bhumraj Daimary and Sh. Swamdwn Diamary were recorded after three months of the date of seizure, where both the appellants denied the knowledge of the Red sanders wood being carried as per their directions and stated that all the clandestine activity has been done by the drivers of their own. 5. It is observed from the case records that vehicles were used for the clandestine activity in relation to export of Red sanders wood and both the drivers had full knowledge of the nature of goods and the destination. Though both the drivers also changed their story in reply to the show cause notice but the same has to be treated as an afterthought and was not made in a reasonable period after recording of their first statements. Sec 115 of the Customs Act 1962 reads as follows:- SECTION 115. Confiscation of conveyances. - (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Vs UOI [1992 (60) ELT 99 (Guj) ] in a smuggling case held as follows in Paras-18,19 20 :- 18. Further in these 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 the record. If the inference drawn by the competent authority is probable one or if that of a prudent mans estimate as to the probabilities of the case, this court would have no jurisdiction to interfere with the said findings of fact. 19. Similar type of contention is dealt with by the Supreme Court in the case of Collector of Customs v. D. Bhoormull - A.I.R. 1974 SC 859 = 1983 (13) E.L.T. 1546. In that case while discussing the provisions of Section 167 of the Sea Customs Act, the court also discussed the contention that burden of proof is always on the department and also the jurisdiction of the court under Article 226 of the Constitution of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t necessarily perfect proof; often it is nothing more than a prudent mans estimate as to the probabilities of the case. 31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered - to use the words of Lord Mansfield in Elatch v. Archer (1774) 1 Cowp 63 at p. 65 according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted. Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden. 32. Smuggling is clandestine conveying of goods to avoid illegal 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. On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned, and if he fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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