2017 (1) TMI 834 - AT - Customs

Confiscation of bus - imposition of fine - Smuggling of Gold - gold found to be in possession of driver of the bus - the appellant is the owner of the bus - whether the appellant is involved in smuggling of gold? Held that - no case of involvement of the owner-Mr. Vishnu Thapa has been found in the alleged smuggling of gold. Further, no involvement of the agent of the owner, namely, Shri Sunil Chaalise of Transport Department of M/s ABC Tours & Travels Pvt. Ltd., Kathmandu, Nepal, (power of attorney holder), have been found by the Id. Commissioner and no penalty was imposed under Section 112 of Customs Act, 1962. Further, the Id. Commissioner have erred in holding that the driver of the bus, Shri Hari Bahadur Shreshtha, to be the agent of the owner, which is without any basis. No case for confiscation is made out of the bus u/s 115(2) of Customs Act, 1962. The owner-appellant have proved that the bus was so used without knowledge or connivance of the owner himself or his agent in using the conveyance for smuggling. Further, it is admitted fact on record that the gold was not concealed in the bus but was found on the person of the driver. Accordingly, confiscation of the bus set aside and fine on its owner the appellant u/s 115(2) of Customs Act, 1962 also set aside. Appeal allowed - decided in favor of appellant.

Summary

Issues involved:
- Appeal against Order-in-Original regarding smuggling of gold found in possession of bus driver

Analysis:
1. Issue of Smuggling of Gold:
The case involved the interception of a Nepalese bus by Customs officers, resulting in the discovery of two gold biscuits in possession of the driver. The gold was found to be of foreign origin, with no valid import documents produced. The Customs Officers seized the gold and the bus, suspecting illegal importation from Nepal to India. The driver denied involvement, claiming the gold was unclaimed by passengers. The Commissioner found the driver responsible for smuggling due to his control over the vehicle and involvement in the illegal activity.

2. Owner's Liability and Confiscation of Bus:
The appellant, as the bus owner, denied any involvement in the smuggling and argued that neither they nor their agent had knowledge of the gold transport. The Commissioner held the bus liable for confiscation under Section 115(2) of the Customs Act, attributing responsibility to the driver as the person in charge. However, the appellate tribunal disagreed, finding no evidence of the owner's or agent's complicity in the smuggling operation. The tribunal ruled in favor of the owner, setting aside the confiscation of the bus and the fine imposed under Section 115(2).

3. Penalties Imposed:
The driver was penalized under Section 112 of the Customs Act for his role in the smuggling operation. In contrast, no penalties were imposed on the owner or the owner's agent, as there was no evidence linking them to the illegal activity. The tribunal upheld this decision, emphasizing the lack of involvement by the owner or their agent in the gold smuggling incident.

In conclusion, the appellate tribunal allowed the appeal, ruling in favor of the bus owner and ordering the refund of the Redemption fine deposited. The judgment highlighted the importance of establishing clear evidence of involvement before imposing penalties or confiscating assets in cases of smuggling activities.