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Shri Swmdwn Daimary And Shri Bhumraj Daimary. Versus Commissioner of Customs Central Excise & S. Tax, siliguri

2016 (1) TMI 836 - CESTAT KOLKATA

Confiscation of vehicles - carrying Red sanders wood alongwith plaster of Paris for export - no claimant of these goods came forward - bonafide transporter - Held that:- 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 .....

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ecific mention of the same is made in the show cause 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. Na .....

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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 vehicles were found on 30/6/2010 to carry Red sanders wood alongwith plaster of Paris. That the entire quantity of Red sanders wood and Plaster of Paris were confiscated under Sec-111 & Sec 119 of the Customs Act 1962 and no claimant of these goods came forwar .....

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t appellants were never called upon to show cause as to why their vehicles should not be confiscated. 3. Sh. S.K. Naskar AC (AR) appearing on behalf of the Revenue argued that proposals to confiscate vehicles under Sec 115 of the Customs Act 1962 have been clearly spelt out in Par-14 of the show cause notice dt 21/22-12-2010. It was strongly argued by the Learned AR that both the drivers of the seized vehicles have clearly brought out the role of the appellants and appellants at no stage sought .....

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he drivers of the appellants and no claimant of goods has came forward. Learned AR also made the bench go through Para-27 of the case law Orient Enterprises New Delhi Vs CC Cochin (Supra) to argue that facts of that case were different than the facts involved in the present proceedings. Learned AR thus strongly defended the orders passed by the Adjudicating authority. 4. Heard both sides & perused the case records. The issues involved in the present appeals are whether confiscations of appel .....

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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 vehic .....

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give him some more tip. Shri Daimary further told him that all those Sanders Wood were illicitly procured and would be transported from Jaipur (Rajasthan) and unloaded somewhere around Silliguri and from there those would be smuggled out to Nepal via Naxalbari. Shri Daimary further told him that to avoid detection en route, POP Cement (Plaster of Paris Cement) would be loaded over the Sanders Wood by the party (consignor) and transport challan/ documents of P.O.P. Cement would be provided so tha .....

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consignee) would take the empty vehicle from there and after loading the impugned goods would park the laden vehicle in the same place. vi) At about 10.00 hrs. of 27.06.2010, an unknown person came to him and talked about his employer and loading of Sanders Wood. He handed over his vehicle to that person. At about 14.00 hrs. The said person brought the vehicle in loaded condition covered with tarapaulin and handed over the loaded vehicle along with documents of P.O.P. cement Powder. He does not .....

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d Silliguri. The owner of his vehicle instructed him to park the loaded vehicle near a petrol Pump at Leucipokhri near Fulbari where the agents of the party (consignee) would take away the 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. .....

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ll 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) (2) Any conveyance or animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods .....

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e movements of their drivers and vehicles. None of them approached the investigation immediately on coming to know that their vehicles have been seized but kept waiting till they were reached by investigation. In the existing factual matrix it has to be held that both the vehicles were used for clandestine activity with the knowledge & consent of the appellants and the same were correctly confiscated by the Adjudicating authority. There is also no merit in the argument of the appellants that .....

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TAT Mumbai held that statement of co-accused can not be relied upon. In the present proceedings before the bench the very first statements of both the drivers clearly spelt out the role of both the appellants. These statements made by both the drivers were not retracted till filing of replies to the show cause notice. The appellants in these appeals also did not ask for the cross examination of the drivers. The facts in the present appeals are thus different than the facts of the relied upon cas .....

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cult 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 interfe .....

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that the goods are smuggled goods, is on the Department. As it is a fundamental rule relating to proof in all criminal proceedings, where there is no statutory provision to the contrary. The court further held that one of the kindred principles is that the prosecution or department is not required to prove its case with mathematical precision to a demonstrable degree, for in all human affairs absolute certainty is a myth. The law does not require the prosecution to prove the impossible. All tha .....

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person concerned in it. If he fails to establish or explain those facts, an adverse inference of facts may arise against him. The relevant discussion is as under : 30. It cannot be disputed that in proceedings for imposing penalties under Clause (8) of Section 167, to which Section 178A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statuto .....

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nattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus legal proof is not 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 .....

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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 .....

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hat it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property, though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of .....

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