TMI Blog2019 (12) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... ry material. In the present case, the driver in a specific term has stated that the goods were loaded by Manoj Sah and he has stated that it is likely the goods has come from Nepal. In such circumstances, the submission of the petitioner that it is not from Nepal territory, unless it is shown by valid 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 ₹ 50,000/- has been forfeited, treated to be the value of the vehicle. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the time of provisional release of vehicle, I hold that the deposited amount of ₹ 50,000/- may be appropriated against redemption fine as above. (iii) I impose penalty of ₹ 10,000/- (Rupees Ten thousand only) upon the noticee No.1 under Section 112 of the Customs Act 1962. (iv) I impose penalty of ₹ 10,000/- (Rupees Ten thousand only) upon the noticee No.2 under Section 112 of the Customs Act 1962. (v) I impose penalty of ₹ 5,000/- (Rupees Five thousand only) upon the noticee No.3 under Section 112 of the Customs Act 1962. On 4.12.2016, a casual information was received at about 15.00 hrs., the officers of LCS Bhithamore intercepted Truck bearing registration No. AS09C/7546 at Nawahi Chowk, Bhitamore and examined the contents loaded on the truck in the presence of noticee No.1 Md. Idrish Rayn (petitioner no.2) and two independent panches. The noticee No.1 was asked to produce the bill/documents in respect of loaded goods but, he failed to produce the same. The said vehicle loaded with zinc ingots and driver was brought to the office at LCS Bhithamore for thorough search and completion of the seizure formalities. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port:- 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 truck was intercepted and analysis has been reproduced and also mentions the statement of petitioner no.2 but, neither of them filed their show-cause nor appeared before the Custom Authority nor made statement under Section 8 of the Customs Act. The Noticee No.2 (petitioner no.1) has made following statement:- (i) He is the businessman of Kabar (scrap). He engaged to purchase of Kabar (scrap) from the cyclewala or thelawala. He has no permanent kabar shop. While the kabar (scrap) accumulated in huge quantity the same is to be sold to the outsider customer. (ii) He earns his income from business of kabar scrap and agriculture. (iii) While the said goods was intercepted by Customs Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Customs Act, 1962 read with Section 3(2) of the Foreign Trade (Development and Regulation) Act, 1992 and liable for confiscation. Ultimately, the final order for confiscation has been passed with respect to the vehicle which was released on provisional basis, has been given the benefit under Section 125 of the Customs Act that he may deposit a cost of the vehicle and get release of the same, as the petitioner no.2 has already deposited ₹ 50,000/-, the same has been directed to be appropriated against the redemption fine and also imposed penalty of ₹ 10,000/- to the petitioner no.1 and ₹ 5,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. 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 himself has made a statement that its origin is Nepal. In such circumstances, the claim of the petitioners that wrongly proceeding was initiated is completely misconceived and mis-construed, liable to be rejected. Before discussing this issue, it is proper to quote Section 110 and 123 of the Customs Act,1962 which reads as follows:- 110. Seizure of goods, documents and things.- (1) If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods: Provided that where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. (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 of proving that they are not smuggled goods shall be- (a) in a case where such seizure is made from the possession of any person,- (i) on the person from whose possession the goods were seized; and (ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person; (b) in any other case, on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ₹ 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 passed by the Assistant Commissioner, Customs Division, Muzaffarpur Camp at Bodh Gaya. Before parting with the judgment, this Court is of the view that if any of the petitioners file an application under Section 125 of the Customs Act, 1962, the Authority concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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