2013 (1) TMI 390 - AT - Customs

Inflation of quantum of potato bags on the body of the Challan - Deliberate attempt to create an impression that besides potato, the truck in question was carrying no other goods - Held that - It is not in dispute that the truck bearing Registration No.WB-63-3575 loaded with 30,000 bottles of Phensydel New Cough Linctus (100 ml. each) packed in 150 numbers of bags of different types and sizes valued at Rs.21,60,000/- along with a load of 9,675 Kgs. of potato valued at Rs.48,375/- (packed in 215 numbers of gunny bags), while proceeding to Ambasa, Tripura in taking an unauthorized route under fabricated documents, was seized by the Customs Officers on 06.03.2010. All the bottles containing Phensydel New Cough Linctus were absolutely confiscated under Section 113(b) & (d) of the Customs Act, 1962 and all the bags containing potato were also confiscated under Section 119 of the Customs Act, 1962. However, the said confiscated goods had not been claimed by any one. As from the evidences recorded in the impugned Order it is found that the Appellant had initially engaged Shri Nurul as his driver for transportation of the potato on the said truck for a consideration of Rs.52,000/-. After the truck was intercepted by the Customs Officers at Chagolia MVI Gate, Tripura, Assam, Shri Nurul who claimed to be not in possession of the driving licence, had been replaced by the Appellant with another driver for completion of the transportation of the said goods, initially agreed to have been delivered by Shri Nurul at Ambasa, Tripura. Thus, it can be inferred from these circumstances that the Appellant who was eager and committed to completing the transaction from its initial place of loading to the place of its delivery, must be aware of the fact that Phensydel New Cough Linctus along with the potato had been loaded on the said truck. Therefore, agreeing with the finding of the Commissioner that the Department could able to link the chains of the circumstantial evidences in establishing that the transportation of the said Phensydel New Cough Linctus along with the potato, was within the knowledge of the Appellant. In these circumstances, the said vehicle No.WB-63-3575 is liable for confiscation under Section 115(2). However, as at the time of seizure, the value of the truck was assessed to be Rs.3.00 lakh and the fine imposed by the Adjudicating Authority, was Rs.1,50,000/-, which is around 50% of the value of the truck and which sounds to be disproportionate. Hence, to meet the ends of justice, the fine is to be reduced from Rs.1.50 lakh to Rs.75,000/-. Also, the penalty imposed on the Appellant deserves to be reduced from Rs.50,000/- to Rs.25,000/- - appeal of assessee partly allowed.

Summary

Issues Involved:
1. Confiscation of Phensedyl New Cough Linctus
2. Confiscation of potatoes used for concealment
3. Confiscation of the truck used for transportation
4. Imposition of personal penalty on the appellant

Issue-wise Detailed Analysis:

1. Confiscation of Phensedyl New Cough Linctus:
The DRI Officers detained a vehicle carrying 30,000 bottles of Phensedyl New Cough Linctus concealed beneath potato bags, intended for illegal export to Bangladesh. The goods were found without any supporting documents. The transportation method was unique, with the Phensedyl concealed beneath the potato bags. The goods were seized under Section 110 of the Customs Act, 1962, and later confiscated under Section 113(b) & (d) of the Customs Act, 1962, as they were meant for illegal export.

2. Confiscation of Potatoes Used for Concealment:
The truck also carried 215 gunny bags of potatoes weighing 9,675 Kgs, which were used to conceal the Phensedyl bottles. The potatoes were confiscated under Section 119 of the Customs Act, 1962, as they were used for concealing the contraband goods.

3. Confiscation of the Truck Used for Transportation:
The truck bearing Registration No.WB-63-3575 was used for transporting the Phensedyl for illegal export. The truck was confiscated under Section 115(2) of the Customs Act, 1962, but was allowed to be redeemed on payment of a fine of Rs.1,50,000/-. The appellant argued that he had no knowledge of the Phensedyl being loaded on the truck. However, the Tribunal found that the appellant, being the Power of Attorney holder for the truck, was aware of the transportation. The Tribunal reduced the fine from Rs.1,50,000/- to Rs.75,000/-.

4. Imposition of Personal Penalty on the Appellant:
The appellant was penalized Rs.50,000/- under Section 114 of the Customs Act, 1962. The Tribunal noted that the appellant, as the person responsible for the truck, could not absolve himself of the responsibility. The Tribunal found that the appellant was aware of the transportation of Phensedyl along with potatoes. However, the penalty was reduced from Rs.50,000/- to Rs.25,000/-.

Conclusion:
The Tribunal upheld the confiscation of Phensedyl New Cough Linctus and potatoes used for concealment. The truck's confiscation was also upheld but with a reduced fine. The personal penalty on the appellant was reduced, acknowledging his partial responsibility. The appeal was partly allowed to the extent of reducing the fine and penalty.