2005 (11) TMI 330 - AT - Customs

Imposition of Penalty - vehicle used for transporting contraband goods - Statement of co-accused - Evidence - HELD THAT - I find that the Commissioner (Appeals) has mis-directed himself in this regard inasmuch as once it is admitted that there are every chances that the appellant may not be de facto owner of the vehicle but somebody else may be the out come may be different. On the face of it, the appellant cannot be penalized u/s 112(a) and (b) about the ownership of the vehicle. Further, I find that the statement of the driver Shri Iliyas Miyan cannot be a substantive piece of evidence as he was one of the co-accused in the case and penalty has been imposed on him. It is settled law that statement of co-accused cannot be used without corroborating the evidence. In this case, I find that the evidence which has been seized by the Department when they intercepted the vehicle in the form of registration certificate and other documents of the vehicle which were produced before me directly show that the ownership of the vehicle is with somebody else other than the current appellant. On the face of it, the appellant should not be saddled with any penalty u/s 112 of the Customs Act. Thus, the impugned order of the Commissioner (Appeals) deserves to be set aside. I set aside the impugned order and allow the appeal of the appellant.

Summary

Issues:
Imposition of penalty under Section 112 of the Customs Act, 1962 based on ownership of the vehicle used for transporting contraband goods.

Analysis:
The appeal was filed against the Order-in-Appeal reducing the penalty from Rs. 15,000 to Rs. 5,000 imposed on the appellant under Section 112 of the Customs Act, 1962. The Customs authorities intercepted a vehicle carrying contraband goods, leading to the imposition of the penalty. The appellant was asked to show cause as to why the penalty should not be imposed, and the adjudicating authority initially imposed a penalty of Rs. 15,000, which was later reduced by the Commissioner (Appeals) to Rs. 5,000. The appeal challenged the imposition of the penalty itself.

The appellant's representative argued that the penalty was wrongly imposed solely based on the driver's statement, without considering documents proving ownership of the vehicle by someone else. It was contended that as per the Motor Vehicles Act's definition of 'owner,' the appellant did not qualify as the owner of the vehicle. The imposition of the penalty solely on the co-accused's statement was deemed contrary to established law.

On the other hand, the Departmental Representative (DR) asserted that the driver's statement clearly implicated the appellant in the transportation of contraband goods, indicating his involvement and monetary benefit from the illegal activity. The DR emphasized the overwhelming evidence, including the driver's statement mentioning the appellant's village, as grounds for imposing the penalty.

The Tribunal analyzed the provisions of Section 112(a) and (b) of the Customs Act, 1962, which outline penalties for improper importation of goods. It was noted that to impose a penalty under Section 112, the person must engage in activities specified in the section. The Tribunal found that the appellant did not fall under Section 112(a) and disputed the DR's argument that the appellant could be covered under Section 112(b) due to involvement in transporting contraband goods. The Tribunal highlighted that the contraband goods were not found on the appellant or the vehicle registered under someone else's name, as evidenced by seized documents.

The Tribunal disagreed with the Commissioner (Appeals) and held that the appellant should not be penalized under Section 112 based on the evidence presented. It was emphasized that the driver's statement, being a co-accused, could not be considered substantive evidence without corroboration. The Tribunal concluded that the appellant should not be penalized under Section 112 of the Customs Act, setting aside the Commissioner (Appeals)'s order and allowing the appeal.