2012 (5) TMI 301 - AT - Customs

Confiscation of 3.6 MTs of diesel stock in the vessel - smuggled goods goods released provisionally against band and bank guarantee - Held that - Commissioner ought to have confiscated the entire quantity (147 3.6 MTs) under Section 120(2) without splitting the stock in the manner he did, confiscation of this quantity of diesel is liable to be upheld, major part of the above stock was legally acquired by the appellant and no duty thereon was demanded by the Revenue, fine of Rs.1,00,000/- will be fair and justifiable. After deducting the aforesaid fine of Rs.50,000/- already paid by the appellant, appeal is disposed of

Issues Involved:
1. Confiscation of 3.6 MTs of smuggled diesel.
2. Confiscation of 147 MTs of legally acquired diesel mixed with smuggled diesel.
3. Confiscation of the vessel "M.V. Sea Bulk Toota".
4. Penalties imposed on individuals, including the Chief Engineer.
5. Exoneration of the Captain of the vessel.
6. Determination of redemption fine and duty.

Detailed Analysis:

Issue 1: Confiscation of 3.6 MTs of Smuggled Diesel
The Commissioner of Customs confiscated 3.6 MTs of diesel found to have been smuggled, valued at Rs.1,16,187.82, under Section 111 of the Customs Act. A fine of Rs.50,000/- was imposed under Section 125 in lieu of confiscation, and duty of Rs.43,860.30 was directed to be paid by the appellant. This decision was not contested by the appellant, who accepted and paid the adjudged dues.

Issue 2: Confiscation of 147 MTs of Legally Acquired Diesel Mixed with Smuggled Diesel
The Commissioner also confiscated 147 MTs of diesel under Section 120(2) of the Customs Act, as it was mixed with the smuggled diesel and could not be separated. A fine of Rs.20 lakhs was imposed under Section 125 in lieu of confiscation. The appellant contested this, arguing they had no knowledge of the smuggled diesel. The Tribunal upheld the confiscation but reduced the fine to Rs.1 lakh, considering the major part of the diesel was legally acquired.

Issue 3: Confiscation of the Vessel "M.V. Sea Bulk Toota"
The vessel, valued at over Rs.8.3 crores, was confiscated under Section 115 of the Act. A fine of Rs.1 crore was imposed under Section 125 in lieu of confiscation. The Tribunal upheld the confiscation but reduced the fine to Rs.5 lakhs. The appellant's challenge to this decision was remanded by the High Court for fresh consideration of the fine imposed.

Issue 4: Penalties Imposed on Individuals, Including the Chief Engineer
Penalties were imposed under Section 112 of the Act on several individuals, including the Chief Engineer, but not on the Captain. The Chief Engineer's appeal was dismissed by the Tribunal, which upheld the confiscation of foreign currency found in his cabin, indicating his involvement in the smuggling.

Issue 5: Exoneration of the Captain of the Vessel
The Revenue's appeal against the exoneration of the Captain was dismissed by the Tribunal and further by the High Court, due to lack of evidence of the Captain's knowledge of the smuggling.

Issue 6: Determination of Redemption Fine and Duty
The Tribunal was tasked with determining whether the 147 MTs of diesel were liable to confiscation under Section 120(2) and the appropriate fine under Section 125. The Tribunal concluded that the entire quantity of diesel (147 + 3.6 MTs) was liable to confiscation under Section 120(2). The fine was set at Rs.1 lakh, with a deduction of Rs.50,000/- already paid, leaving a balance of Rs.50,000/- to be paid by the appellant.

Conclusion:
The Tribunal upheld the confiscation of the entire diesel quantity and the vessel, with modifications to the fines imposed. The appellant's acceptance of the adjudged dues for the smuggled diesel precluded further objections. The Chief Engineer's knowledge of the smuggling was deemed equivalent to the owner's knowledge, thus justifying the confiscation under Section 120(2). The appeal was disposed of with consequential relief to the appellant.

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