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TMI Blog1987 (1) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... its voyage from Dubai. At the time of inspection, the vessel was carrying a consignment of wet dates. The rummaging of the vessel was done at Mandvi. 1258 wrist watches, 294 watch straps totally valued at Rs. 2,79,260/- were recovered from a specially built secret cavity. On further rummaging, goods of foreign origin, such as T.Vs, V.C.Rs, Cassettes, fabrics, ladies umbrellas, foreign currency etc. totally valued at Rs. 1,18,163.10 were found out. The value of the wet dates carried in the vessel was Rs. 6,58,640/-. Further rummaging of the vessel resulted in the recovery of gold of foreign origin valued at Rs. 4,94,400/- found concealed below the engine foundation. The rummaging was also done on 21-2-85 and during this rummaging some more gold valued at Rs. 2,30,000/- was recovered. 5. Further investigation revealed that the vessel had left Bombay for Dubai on 18-1-85 with a consignment of onion. On 5-2-85 when the date cargo was being loaded at Dubai oen Haji Sattar met the tindel and delivered wrist watches as well as contraband gold to the tindel which were to be delivered at Bombay after the consignment of wet dates have been unloaded at Jamnagar. 6. The contraband goods, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dates in the vessel in question. The appellants had no hand in the smuggling activities of the crew and they are totally unaware of the smuggling activities. Therefore, the Collector was not at all justified in ordering confiscation of the wet dates. 9. Shri Pattekar, appearing for the Collector, however, contended that the wet dates found in the vessel were used for concealing the contraband goods and therefore they became liable to confiscation under Section 119 of the Customs Act and as such the order of the Collector is correct in law and on facts. 10. The short question that arises for our consideration in these two appeals is whether the Collector was unjustified in ordering confiscation of the dates. 11. The Collector passed the order of confiscation of the dates under Section 119 of the Customs Act. The said Section authorises confiscation of goods used for concealing smuggled goods. It is, therefore, necessary for the Collector to record a finding that the dates were used for concealing the smuggled goods. In para 11 of his order, the Collector had stated : As regards the consignments of dates it is seen that the vessel has been used in the smuggling of contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l to deliver the contraband goods at Bombay after the consignment of wet dates have been unloaded at Jamnagar. So if wet dates were to be unloaded at Jamnagar then it cannot be said that the wet dates were used for concealing contraband goods. Even at the initial stage, there was no intention to conceal the contraband goods underneath the wet dates. The evidence is highly insufficient and inconclusive to come to a conclusion that the legitimate goods, namely, wet dates were used for concealing smuggled goods. We, therefore set aside the confiscation of the wet dates. We direct that the security amounts adjusted towards -the fine in lieu of confiscation shall be refunded to the two appellants. Re : 81 of 86. The only contention urged in this appeal by Shri B.M. Parikh was that the order of absolute confiscation of the vessel passed by the Collector is illegal, and unsustainable in law. Shri Parikh rightly did not contend that the vessel in question was not liable to confiscation under Section 115(2) or under Section 72 of the Gold (Control) Act. He only contended that since the vessel was used for the carriage of goods for hire an option should have been given to the owner to redeem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even though Sub-section (2) authorises confiscation of a conveyance used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods the proviso to that sub-section requires giving of an option to pay in lieu of confiscation a fine not exceeding the market price of the goods which are sought to be smuggled or the smuggled goods if the conveyance is used for the carriage of the goods or passenger for hire. The vessel in question was registered at Mandvi-Kutch Port. It was a sailing vessel. The evidence disclosed that it carried onions to Dubai and on its return journey it carried dates on hire. Therefore, it could be safely concluded that it was a vessel used in the carriage of goods for hire. Therefore, the Collector committed an error in ordering absolute confiscation. In his order, the Collector observed : I find, while the vessel had carried wet dates, the vessel had a number of secret cavities and these secret cavities had been used by the tindel and other crew members for smuggling. The tindel was a close relation of the owner and had actively helped the owner to obtain a loan from the bank. Therefore, I do not find any valid reason on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne in lieu of confiscation were to exceed the market value. In the absence of precise evidence as to the market value of the vessel on the date of confiscation, we take the value determined by the independent surveyors, namely, Marine Surveyors and direct that the vessel be released to the appellant on payment of fine of Rs. 2,50,000/-(Rupees two lakhs, fifty thousand only) in lieu of confiscation. The appellant shall exercise this option within a period of two months from the date of communication of this order. CD(BOM)-124/86. 16. During the hearing of this appeal, Shri Rawal made it very clear that he is not questioning either the order of confiscation of the vessel or the confiscation of the goods. He only submitted that the bank had advanced certain amounts and the vessel was hypothecated to the bank. And therefore, the bank s interest should be safeguarded. Shri Rawal further submitted that there should be a direction to the Collector of Customs to discharge the loan amount due to the bank in the event of the vessel being sold. Shri Rawal submitted as a result of order of confiscation, the vessel vests in the Central Government but then it does not vest free from all enc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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