TMI Blog2017 (1) TMI 834X X X X Extracts X X X X X X X X Extracts X X X X ..... found by the Id. Commissioner and no penalty was imposed under Section 112 of Customs Act, 1962. Further, the Id. Commissioner have erred in holding that the driver of the bus, Shri Hari Bahadur Shreshtha, to be the agent of the owner, which is without any basis. No case for confiscation is made out of the bus u/s 115(2) of Customs Act, 1962. The owner-appellant have proved that the bus was so used without knowledge or connivance of the owner himself or his agent in using the conveyance for smuggling. Further, it is admitted fact on record that the gold was not concealed in the bus but was found on the person of the driver. Accordingly, confiscation of the bus set aside and fine on its owner the appellant u/s 115(2) of Customs Act, 1962 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Customs Officers to produce valid documents relating to import of the recovered gold, Shri Hari Bahadur Shreshtha could not produce any papers. On being interrogated by the Officers Shri Hari Bahadur Shreshtha said that, the said gold biscuits recovered from him had been given to him by a person named, Gokul R/o Bauddha, Kathmandu, who works as Guide in Nepal and who had told him that after reaching Delhi, he (Hari Bahadur Shreshtha) was required to reach Tibetan Camp, Majnu Ka Teela, Delhi and inform him (the said person Gokul) and that somebody would come and collect the gold biscuit. For this service, Gokul had promised to give him two thousand rupees. Thereafter, the Customs Officers took custody of the recovered foreign biscui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Total Rs.72,64,300/- The statement of the driver - Shri Hari Bahadur Shreshtha, was recorded under Section 108 of the Customs Act, 1962 wherein he stated that the recovered gold was given to him a person - named - Gokul, who was resident of Bauddha, Kathmandu and worked as guide. He was required to carry the gold to New Delhi (Majnu Ka Teela, near Tibetan Camp) and then contact Mr. Gokul who will arrange for some unknown person to receive the delivery of the gold. Gokul did not inform him any whereabout of the above of the said unknown person. For this service/ work, Gokul had promised to pay him ₹ 2000/- Nepalese. On being interrogated about Passports recovered from him he said tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d thereafter on satisfaction of the Customs Authority, the bus had been allowed to proceed. Thereafter in about 15 minutes the Customs Authorities again checked the bus at Nautanwan Bypass wherein the Customs Authorities claimed to have found two gold biscuits wrapped in polythene lying unclaimed in the bus, which was not claimed by any passengers. As none of the passengers claimed the said gold, the Customs Authorities have falsely framed the driver and alleged that the said gold have been recovered from his person. The said driver, further, claimed that it is not possible for a person to drive a bus with about 2 kg of gold in his pocket. He has further averred that had he been carrying the gold on his person, he would have definitely hid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... untry made goods from Nepal to India is prohibited. As regards, whether the owner of the bus is liable to face confiscation of the bus under provisions of Section 115(2) of Customs Act, 1962, the Id. Commissioner have recorded the following findings: From this it is clear that above foreign gold was being illegally imported from Nepal to India. Generally, in absence of the owner of the vehicle, the driver is considered as person in charge of the said vehicle and that for any incident/ action in bus, it is the driver who is responsible. In this context, Shri Hari Bahadur Shreshtha taking undue benefit, being the driver engaged himself in gold smuggling. The gold biscuits were recovered from Shri Hari Bahadur Shreshtha who was working as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner and perusal of records, I find that no case of involvement of the owner-Mr. Vishnu Thapa the appellant herein has been found in the alleged smuggling of gold. Further, I find that no involvement of the agent of the owner, namely, Shri Sunil Chaalise of Transport Department of M/s ABC Tours Travels Pvt. Ltd., Kathmandu, Nepal, (power of attorney holder), have been found by the Id. Commissioner and no penalty was imposed under Section 112 of Customs Act, 1962. Further, I find that the Id. Commissioner have erred in holding that the driver of the bus, Shri Hari Bahadur Shreshtha, to be the agent of the owner, which is without any basis. In view of the findings on record, I find that no case for confiscation is made out of the bus under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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