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TMI Blog1987 (8) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was owned by him. The brief facts of the case are that the Customs officers at Betul boarded the vessel on 25.2.1977 following a receipt of information that this vessel was moving in a suspicious manner. They found S/Shri Ratan Jeevan Machhi and Thakur D. Surti had boarded the vessel. The vessel was rummaged by the Customs Officers and this yielded incriminating things showing that the vessel had made a trip to Dubai. The vessel neither had any registration certificate nor any papers like the port clearance from the last port of call. The vessel was therefore seized in the reasonable belief that the same was used for smuggling goods. Statements of the two crew members were recorded and they revealed that the name of the vessel was Deepak Nauka, its owner was Shri Dinesh Kumar Kuwawala and that it had gone to Dubai and brought contraband goods to Goa on 19.2.1977. These contraband goods had been unloaded in a Fishing Hody to the shore. Further investigations in the matter disclosed that the. contraband goods were landed by Shri Harishbhai Lalbhai Patel and they were secreted in a jungle near Sanguem. On 2.3.1977 the Customs staff recovered 67 packages of stainless steel from this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registration certificate and the fishing pass to confirm the identity of the owner of the vessel. Referring to the Dy. Collector s order, Shri Bhatt contended that the Dy. Collector had not dealt with any evidence to show that the appellant was the owner of the vessel Deepak Nauka as stated by Shri Hiralal and Shri Hipabhai Shah nor was any evidence produced regarding the alias of the appellant. Shri Bhatt submitted that the appellant Shri Mansuk C. Bhatt was not the owner of the vessel Deepak Nauka. The actual owner might have absconded after giving the vessel for the purpose of smuggling. There was no evidence to hold that the appellant Shri Mansuk C. Bhatt was concerned in the smuggling of the goods and hence he requested that the Dy. Collector s order as confirmed by the order of the Appellate Collector levying a penalty of Rs. 1,00,000/- should be quashed. 3. On behalf of the Collector, Shri Pattekar contended that the vessel s registration certificate does not remain with the Customs Officer. He stated that however, a register is maintained by the Customs. Officer showing the registration of the vessels. The register is known as Galpat Nondh Registers. However, Shri Pattek ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers and the owner Shri Dinesh K. Kuwawala went to Dubai for the purpose of bringing the contraband goods. In addition to these two crew members who had mentioned the name of the owner Shri Dinesh K. Kuwawala, another crew member Shri Pushkin Raj Marbros had mentioned the name of the owner as Shri Mansuk C. Bhatt. In his statement recorded under Section 108 of the Customs Act on 1.3.1977, Shri Marbros has deposed that along with the owner of the vessel Deepak Nauka, Shri Mansuk C. Bhatt he went to Dubai along with other crew members including the two crew members who had deposed against Shri Dinesh K. Kuwawala. The statement of Shri Marbros together with the facts of the smuggling corroborated the evidence of S/Shri Ratan Jeevan Machhi and Thakur D. Surti pointing out the alias name of the owner of the vessel Deepak Nauka. In addition, the Deputy Collector further relied on the statement recorded under Section 108 of Shri Hiralal N. Khandar. He has confirmed his acquaintance with Shri Mansuk C. Bhatt who was the owner of the vessel Deepak Nauka. Shri Hiralal s statement further admits his part in the landing of the smuggled goods. Shri Hiralal was present at the jetty in Bombay on 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed who subsequently did not even appear before the adjudicating authority, the adjudicating authority had imposed a personal penalty of Rs. 1,00,000/- and the finding of the adjudicating authority is not based on any legal evidence and is unacceptable and the Appellate Collector independently did not examine the evidence and his finding is also vitiated., - 8. Shri N.K. Pattekar, the learned Departmental representative, did admit during the hearing that the Department did not make any attempt to verify as to in whose name the vessel in question was registered. He had further submitted that if the Tribunal considered that evidence is essential the matter may be remanded to the Dy. Collector for denovo adjudication. 9. The case of the Department has been summarised by the adjudicating authority in pages 12 and 13 of his order. The summary reads :- One Mr. Hiralal N. Shah, after making all the arrangements, for the receipt and disposal of the goods in Goa, arranged the Craft DEEPAK NAUKA" bearing Regd. No. PLG 267 for smuggling the goods under seizure from Dubai. Accordingly, DEEPAK NAUKA obtained a Port Clearance for Porbunder and sailed from Versova, Bombay for Dubai. Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DEEPAK NAUKA" in which the goods under seizure were loaded at Dubai and landed at Velsao. He knowingly used the vessal exclusively for the purpose of smuggling the goods into India. These facts are supported by the statements of Shri Hiralal N. Shah, Thakur D. Surti; Ratan Jeevan Machhi and Pushkin Raj Marbros." The Appellate Collector also relied on the statements of the witnesses on whose statements the Dy. Collector had relied on. The Appellate Collector had also drawn adverse inference against the appellant because of his conduct of abscondance. 11. From the order of the Dy. Collector it is clear that excepting one all the other witnesses namely, Ratan Jeevan Machhi, Thakur D. Surti and Pushkin Raj Marbros did not send any reply to the show cause notice. They also did not participate in the adjudication proceedings. 12. The evidence referred to in the order of the learned Dy. Collector satisfactorily established that the mechanised craft Deepak Nauka was engaged by Shri Hiralal N. Kandar alias Hirabhai Shah for the purpose of smuggling stainless steel wrist watches of foreign origin as well as other articles seized in this case. The appellant before us did not contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esh Kumar Kuwawala was the owner of the craft Deepak Nauka. When three out of the four witnesses did not state that either Dinesh Kumar Kuwawala or Mansukh C. Bhatt had another name either as Mansuk C. Bhatt or Dinesh Kumar Kuwawala, the Customs authorities ought to have verified the registration certificate as well as the register maintained by them in order to ascertain as to in whose name the craft Deepak Nauka was registered. 13. The finding of the Dy. Collector as well as the Appellate Collector that the appellant was absconding appears not based on satisfactory evidence. Just because the show cause notice was not received by the appellant, no inference of abscondance can be drawn. The evidence discloses that the vessel Deepak Nauka sailed to Dubai after taking port clearance from Versova. If investigation had been done at Versova port, the particulars regarding the crew members and the tindel would have been got. No effort was made by the Department in this regard. 14. In order to impose personal penalty it would not be necessary to establish that the vessel was used in the smuggling of contraband goods. It would be sufficient if there is evidence to establish that the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon ble President under Section 129-C(5) of the Customs Act and the same has been referred to me for my opinion : Whether on the facts and in the circumstances of the case the appeals should be rejected as held by Member (T) or should be allowed and the matter should be remanded to the adjudicating authority for consideration afresh as held by Member (J). 18. The learned advocate Shri S.M. Bhat, appearing for the appellant has supported the decision of the learned Member (J), as against the decision of the learned Member (T), although he has stated that the penalty against the appellant could be set aside without remanding the matter to the original adjudicating authority, inasmuch as the case is pending for about a decade now. There is no question of imposing of penalty on the appellant inasmuch as the identification of the appellant as the owner of the vessel Deepak Nauka is totally lacking despite the fact that documentary evidence is available with the customs authorities themselves and they have not cared to produce the same either before the adjudicating authority or before the Tribunal. The appellant is said to be indicated merely on a statement of one of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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