9911796707
TMI Blog2019 (12) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... facts as discussed above and in exercise of power conferred upon me under Section 22 of the Customs Act 1962, I pass the following orders:- (i) I order for absolute confiscation of the seized Zink Ingot weighing 1021.480 Kgs. valued at Rs. 1,94,081/- (Rupees One lakh ninety four thousand eighty one only) under Section 111(b) of the Customs Act, 1962. (ii) I order for confiscation of the seized vehicle valued at Rs. 2,50,000/- (Rupees Two lakh fifty thousand only) under Section 115(2) of the Customs Act 1962. However, I give option to redeem the vehicle on payment of fine of Rs. 50,000/- (Rupees Fifty thousand only) under Section 125 of the Customs Act, 1962 to the noticee No.1. Since, I find that the noticee No.1 has deposited amount of Rs. 50,000/- (Rupees Fifty thousand only) vide T.R. 6 No. 00002 dated 30/12/2016 at the time of provisional release of vehicle, I hold that the deposited amount of Rs. 50,000/- may be appropriated against redemption fine as above. (iii) I impose penalty of Rs. 10,000/- (Rupees Ten thousand only) upon the noticee No.1 under Section 112 of the Customs Act 1962. (iv) I impose penalty of Rs. 10,000/- (Rupees Ten thousand only) upon the noticee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that the said old Jasta (Zinc) has been loaded on his vehicle in the kabar shop of Shri Manoj situated at Bhithamore. He has further stated that the Jasta appears to be of Nepal but he did not know the actual mode of illegal import from Nepal into India. The zinc Ingot was of different shape and size but he did not disclose the destination where to deliver the material and further he has filed application on 7.12.2016 claiming the ownership of the seized vehicle which was later on released on provisional basis. The said vehicle was released on the security money of Rs. 50,000/-. The said goods were sent to Joint Director, Chemical Laboratory, Customs House 15/1 Strand Road, Kolkata and the Chemical Examiner, Kolkata gave the following report:- "The sample is in the form of out/broken shining grayish metallic lumps of irregular shape and size. It is mainly composed of zinc together with iron and small amount of other inorganic matter. Zinc=96.4% by wt.". The show-cause notice was issued under Section 124 of the Customs Act, 1962 to all the petitioners giving full details of fact wherein mentions about the casual information on 4.12.2016 at 15.00 hrs. whereafter the truc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as netogiated with Noticee No.1 at Rs. 1500/-. The seized goods was to be used for manufacturing of Gas Regulator and belt buckles. He has admitted such activities are carried out at Sursand, Sitamarhi and Muzaffarpur but he did not give the name and details of the manufacturer or conversion units of zinc ingots. The Noticee No.3 (petitioner No.3) has appeared and said that he has no relation with the Noticee No.1 (petitioner no.2) but, he is a neighbor. The seized goods has been converted from old battery and he knows the petitioner no.1 (Noticee No.2) from childhood and accepted that two cases under the customs case have already been registered. Again the statement of driver was recorded, he has restated the same that the goods belonged to Manoj Sah and who loaded the goods on his truck, the Noticee No.2 claiming to be his goods, Manoj Sah has said that it does not belong to him having no connection with any of the aforesaid two persons and, ultimately, after discussion, has arrived to a conclusion that under the goods were of Nepal origin, were imported illegally into India from Nepal without any valid document, contravene the provision of Section 7, 11, 46 and 47 of the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of Section 125 of the Customs Act. So, the impugned order is liable to be interfered with by this Court. Per contra, learned counsel for the Custom Department submits that the goods were seized in presence of the driver as well as in presence of the two persons (witnesses), seizure memo was prepared properly, inasmuch as, there is a dispute of ownership of the property seized and the statement does not reflect that the seizure memo bearing signature of the panches was not handed over to the driver at the relevant time as the petitioner nos. 1 & 3 were not present. Further, forming an opinion that the material seized is of third country is based upon the information received, that led to interception of driver who made a statement that the seized Zinc has been smuggled from Nepal territory. It has further been submitted that looking to the facts and circumstances, the Custom Officer has rightly formed an opinion or reason to believe that the goods were of Nepal origin as per Section 123 of the Customs Act, the burden lies with the petitioners to show that it is a rightful material and not a material imported from the third country as the material seized from the driver who h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized: Provided that the aforesaid period of six months may, on sufficient cause being shown, be extended by the 2[Commissioner of Customs] for a period not exceeding six months. (3) The proper officer may seize any documents or things which, in his opinion, will be useful for, or relevant to, any proceeding under this Act. (4) The person from whose custody any documents are seized under sub-section (3) shall be entitled to make copies thereof or take extract therefrom in the presence of a officer of customs." "[110-A. Provisional release of goods, documents and things seized pending adjudication. - Any goods, documents or things seized under section 110, may, pending, the order of the [adjudicating authority], be released to the owner on taking a bond from him in the proper form with such security and conditions as the [adjudicating authority] may require.]" "123. Burden of proof in certain cases.- [(1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... document or material from the person they have purchased, in such circumstances, in view of the statement of the driver, rightly the confiscation has been made and the order has been passed holding that the material is from Nepal origin and, in the present case, the driver has stated that the materials are of Manoj Sah, the petitioner no.3 whereas the petitioner no.1 Shiv Shankar Prasad (Noticee No.2) is claiming to be the owner of the goods. So, it is an unverified material as to who is the owner of the property. The vehicle has already been released and Rs. 50,000/- has been forfeited, treated to be the value of the vehicle. Learned counsel for the petitioners submits that they ought to have given the benefit of Section 125 of the Customs Act. When the ownership of the property is in dispute, the proper course for the petitioner no.1, who is claiming to be the owner of the property, is to file proper application under Section 125 of the Customs Act before the authority of proper jurisdiction who will take a decision in accordance with law. In that view of the matter, this Court does not find that the petitioners have made out a case for interference with the impugned order pas ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
