TMI Blog2003 (9) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue Intelligence (D.R.I.). On search, it was found that 1895 pieces of gold biscuits valued at Rs. 7,22,83,922/- were kept concealed in the ceiling of one of the unoccupied cabin (Engineer 'A' on 'B' Deck). The said 1895 gold biscuits were seized under a panchanama for action under the provisions of the Customs Act, 1962. During, the course of investigation, a number of crew members on board the vessel were interrogated and their statements were recorded. In his statement recorded under Section 108 of the Customs Act, 1962. Mr. Leonardo Vilarico, the Chief Cook of the vessel, stated that during the ship's stay at Dubai, he met one Mr. Agha and Mr. Eric Pinto, representatives of the shipping agents and at their instance, he smuggled the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the knowledge that one of the master keys of that cabin is misplaced has direct nexus with the smuggling of gold, the vessel in question could not be confiscated. Mr. Ramabhadran relying upon the Judgment of this Court in the case of Additional Collector of Customs v. Mogul Lines Ltd. reported in 1990 (48) E.L.T. 349 (Bom.) submitted that once the adjudicating authority has found that the owner/master of the vessel are not involved in the act of smuggling and has not levied any personal penalty on the Master of the ship or the owner of the vessel, then, there was not ground on which the vessel could be confiscated under Section 115(2) of the Customs Act. Accordingly, he submitted that the order confiscating the vessel be quashed and set asi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sport in the smuggling of any goods is liable for confiscation, unless the owner of the conveyance proves that it was so used without the knowledge and connivance of the owner himself, his agents, if any, and the person in charge of the conveyance. In the present case, admittedly, the adjudicating authority has not recorded any findings that the conveyance was used as a means to transport the smuggled goods with the knowledge or connivance of the owner, agent or the captain of the vessel. Under the circumstances, the confiscation of the vessel under Section 115(2) of the Customs Act cannot be sustained. 6.It appears that the adjudicating authority purported to confiscate the vessel on the ground that appropriate precautionary steps had no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no finding recorded in the order in original that negligence on the part of the owner/Captain was deliberate with intent to facilitate the smuggling activity. Under these circumstances, it is not possible to uphold the confiscation of the vessel. 8.Heavy reliance was placed by the Counsel for the Revenue on the decision of the Apex Court in the case of Union of India v. Mustafa Najibai Trading Co. reported in 1998 (101) E.L.T. 529 (S.C.). In our opinion, the said decision is totally distinguishable on facts. In that case, it was held that there was a lapse on the part of the Captain of the ship in not filing the Import General Manifest (IGM) and that the failure to file IGM was with fraudulent intention and, therefore, confiscation o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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