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TMI Blog1988 (5) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... India. As such the caravan arrived at Calcutta under Carnate No. 729048 dated 25.5.85 by M.V. Bengal Progress, Import ROT No. 376/85 and the same was unloaded at 5, Netaji Subhash Dock, Calcutta and was placed before the officers of the Customs (DIU) by the appellant and a representative of his legal clearing agent one M/s. N.C. Sinha Sons for clearance and inspection by Customs on 6.8.85. Instead of following the procedure prescribed under the Tourist Baggage Rules the Officers started indiscriminately rummaging the said van and went on a roving and fishing expedition. The Appellant informed the officer on duty about the goods in Van including the Balls for ball point pens and stated that all the goods including the Van were in transit to Nepal and the same be endorsed on his passport which he declined to do or record. The Officers brought the Van to the Customs House and sealed the same. The next day the Van and the goods lying therein were all seized under the Customs Act under the belief that the goods were smuggled into India and hence liable to confiscation and the caravan as being used as carriage to transport the goods under seizure. The wooden plywood, steel angle an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Nepal. Mr. Hoppe had intended to sell the Vehicle in Nepal where such sale is legally permissible. Mr. Rupper had flown to India much earlier and had gone to Nepal. At the time of seizure Mr. Rupper had come back from Nepal where at he had encashed foreign currency into Indian currency and brought the same back with him to Calcutta and there was nothing illegal about its acquisition. The foreign currency seized belonged to both of them and being below 1000 dollars per person no declaration was required in terms of the notification issued by the Reserve Bank of India. During the examination of the vehicle by the Customs Officers Mr. Hoppe had mentioned that a large number of Ball tips for Ball point pens were in the Van and had been kept under the floor board so as to make room for them to rest and sleep during the journey as the Caravan was also full of household goods and equipment. It was further stated regarding the remaining goods including the Balls point tips that under Rule 3 of the Tourists Baggage rules the personal effects of the tourists are allowed to be brought in temporarily free of duty subject to their being re-exported. According to Rule 3 read with Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in fact declared the presence of the Ball tips before the seizure had been made and requested that the same be endorsed on his passport. Unfortunately, the request was not complied with nor recorded. (viii) The fact that the ball tips were placed on the floor Board of the car for convenience do not show any malafide on the part of the appellant. (ix) In view of the fact that the appellant throughout maintained that the Van and all its contents were destined for Nepal, no charge of smuggling can be made out against the appellant. (x) Similarly, the Van could not have been used for the carriage of smuggled goods as there was no intention to smuggle anything into India. (xi) None of the Section mentioned in the show cause notice particular 111(d), 111(f), 111(j), 115(2) and 119 had been violated or are applicable to the instant case. (xii) That the foreign currency seized was well within the permissible limits hence could not have been seized. (xiii) That the Indian currency seized had been suitably accounted for. (xiv) As there had been no offence under Section 111, no penalty could be imposed under Section 112 of the said Act, (xv) The appellant has no previous oc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported. Being aggrieved by the said order the appellant begs to prefer this appeal on, inter alia, the following amongst other grounds:- I. For that the Collector of Customs erred in ordering the confiscation of the Ball tips absolutely in terms of Section 111 (d) of the Customs Act merely because they were in large quantity. The Collector overlooked the fact that the same were intended for sale in Nepal and not in India and the appellant undertook to re-export them out of India. II. For that the Collector of Customs erred in ordering the confiscation of the vehicle as the same was under carnet and had goods in transit to Nepal through India. III. For that the confiscation of the caravan and the ball tips is wholly unwarranted. IV. For that the Collector of Customs erred in imposing a penalty of Rs, 1,000/- on the appellant as no offence was committed under Section 111 of the Customs Act. V. For that the Collector of Customs erred in taking into consideration the fact that the appellant expressed anxiety when the goods were discovered and sent for a Lawyer without considering that the appellant was foreigner having little knowledge of English and there was no question o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Shri Bhowmik, the learned JDR mainly emphasised that this was a case of concealment of the goods in question for the purpose of smuggling them into India. 6. The appellant had brought a caravan under carnet system and filled the necessary form declaring the van, household items and spare tyres. 7. He did not declare anything else. In other words, there was no declaration about the tips of the ball point pens in question. The officers, however, discovered them as concealed in spaces under the carpet. 8. Subsequently, when the seizure was made and the statement was recorded, the appellant admitted his guilt. 9. One of the seized goods, tips of the ball point pens alone were valued at Rs. 1 lakh 50 thousand approx. under the seizure list. 10. The appellant and his friends were arrested and subsequently prosecuted. 11. During prosecution the appellant pleaded guilty and was convicted. 12. Under the circumstances, the charge of concealment is established and the Collector was justified in confiscating the goods and the vehicle and imposing a fine and penalty. In fact, the Collector has taken a lenient view. 13. It was his contention that the statement which has been re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Court of the Hon ble Magistrate. This is evident from the fact that in the complaint before the Hon ble Magistrate the value of the goods had been shown as Rs. 2 lakhs and the value of the car has been as Rs. 1 lakh (i.e. Rs. 3 lakhs in all in round figures), whereas in the seizure memo the value of the tips of the ball point pens alone has been shown as Rs. 1 lakh 50 thousand. But in the show cause notice, the value of the miscellaneous goods as a whole has been shown as only Rs. 66,700/- only and the value of the car has been shown as Rs. 33,000/- (aprox) only and this fact does not appear to have been brought to the notice of the Hon ble Magistrate. 23. Again, the language of the statement itself shows that the foreigner could not have possibly known the usage of the phrases which has been incorporated therein and, therefore, dictated and obtained under duress. 24. Even before the Hon ble Magistrate, the Counsel for the appellant had unfortunately persuaded him and his friend to plead guilty but the Hon ble Court itself was good enough to observe that in so far as Mr. Rupper was concerned, no offence was made out and the court did not accept the plea of guilty of Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tten submissions on 15.4.88. 34. In his written submissions the departmental representative has repeated the facts of the case and pleaded - (1) that the appellant had declared the goods and endorsement made on the inventory which reads as follows:- Made in Switzerland as declared by the owner vide endorsement against S.L. No. 38 of the search list vide page 38 of the paper book. It appears that the learned advocate for the appellant wanted to stretch the meaning of the word declared as stated against column 38 of the search list. Department s reply to the above The declaration as referred to by the learned advocate refers to the country of origin only which is stated to be Switzerland as stated or declared by the owner i.e. the appellant. The learned Bench will kindly recall that the original packing under which the tips of the ball point pens was packed and they were shown in open Court. The tips of the ball point pen were kept inside transparent polythylene packet without indicating any mark of origin of the goods. From the polythylene packet one could not know the country of origin of the goods. In this position the seizing officer asked the appellant as to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted in which admittedly he did not declare about the importation of the tips of the ball point pens. From this fact it cannot be stated that the impugned case that the tips of the ball point pens were in transit to Nepal via Calcutta. In this connection the finding of the adjudicating officer vide page 25 of the paper book is relevant which are as follows:- Uwe Hoppe had submitted an application in form-X as entry for importation, this being the importation of a vehicle under carnet. This form has also been noted like a bill of entry on 1 -8-85. At Sl. No. 5 of the form under the heading Details of the component parts accessories imported alongwith the vehicle the description provided is Mercedes Ben Van (Engine No. and chassis No.1 had been provided) household items, camping goods, tools and spare tyre. This application has been signed by Mr. Uwe Hoppe only. No other declaration is available. From the above fact it is clear that the appellant had made no other declaration except what has been declared in form-X. (4) The appellant is a foreign national and he was not knowing what he has signed and as such the original statement made before the Customs officer on 7.8.85 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f and disbelief is evident from his observations but it is not clear as to how he has arrived at this findings. 42. It appears that the investigating officers had put up a number of versions Therefore, the Collector was in a dilemma and found it difficult to assign any specific reasons for his findings. 43. This becomes evident from the fact that the department s version (and follow-up action in the Court proceedings) differs materially from its own version of the so-called facts as stated in the show cause notice. 44. What is however even more significant from our point of view at this stage is that the Collector s findings present a picture differing from the above versions. This scenario gets further complicated by the fact that on many aspects the Collector has chosen not to express himself freely and in respect of others merely wondered as to what could have happened. 45. However, what has been left unstated or understated in the Collector s order is equally important from the point of view of justice. 46. It is, therefore, necessary at this stage to first note the differences between various departmental versions of the case and to examine their implications. 47. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the picture presented to the Court, there were a number of cavities at a number of places (contrary to the department s own case in the complaint and the show cause notice). This picture is, therefore, different from the one indicated in the show cause notice and the complaint. 55. Again, while the complaint mentions that no documents were produced the Supdt. tells the Court in his statement that necessary documents were submitted before the Customs officers at the dock for the clearance of the vehicle. The documents submitted before the Customs officers at the dock were in transit to Nepal via Calcutta. We have those documents in our possession . The investigating Supdt. is obviously referring here to Carnet papers and although he does not specifically refer to Form X he does refer to documents for clearance and form X is required for taking clearance. The complaint, however, as already noticed, does not refer to these documents whereas the show cause notice refers to carnet but not to Form X (which is a vital document). 56. We will revert to the above anomalies and their implications in due course. In the meanwhile, we may ponder here to observe that The depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Customs law mentioned therein which must have of course been indicated by the officers in the normal course. The basic point which emerges is why the appellant would confess to doing something which he did not do or admit existence of something which was non-existent. If really there was no cavity as Collector has stated, why the appellant has repeatedly stated that there was a self-made cavity unless of course he was persuaded or compelled to say so. This fact coupled with the revelation that his friend Mr. Rupper was also incorrectly impleaded as co-accused (and was acquitted by the adjudicating authority as well as the Court) constitute circumstantial evidence, which could only mean that in all probability some duress was applied and the appellant was made to confess . Hence, this confession is of no value. It is really painful to observe that such an extracted statement was utilised along with incorrect statement of facts to secure conviction. 59. It is also noteworthy that one of the major charges against the appellant is that of non-declaration of the seized goods and the crucial words as per Page-11, Sub-para (ii) of the show cause notice are - The goods und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs officers at the docks for the clearance of the vehicle. The documents submitted by the Customs officers at the docks were in transit to Nepal via Calcutta. We have those documents in our possession". 63. The Assistant Collector (Preventive) has also stated before the Court, inter alia, that - Under triptique system the case in question was brought to India bound for Nepal and the case in question is not liable to be confiscated under Sec. 111(d) of the Customs Act, (the word case is obviously misspelt word Car). 64. In the show cause notice it is also mentioned that The above mentioned Motor Van of foreign origin imported under Carnet No. 729048, dated 25.5.85 by M.V. Bengal Progress, Import Rot No. 376/85 and unloaded at 5, Netaji Subhas Dock, Calcutta was placed before the officers of the Customs (DID) by its owner/importer Mr. Hoppe, holder of West German P.P. No. G-4865360 and representative of his appointed local clearing Agents M/s. N.C. Sinha and Sons for its clearance on 6.8.85". 65. Thus, there is enough evidence to show that the appellant had declared the vehicle and the goods although in view of the conflicting versions in the department s documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epeated in the following words - The specially built in space/cavity discovered on the previous day (6.8.85) was found to contain huge quantity of contraband kept concealed therein". 69. Noticeably, singular has been used. 70. Again - The wooden plywood boards, steel angles and screws were seized under provisions of the Customs Act, 1962 in the reasonable belief of being used to make space/cavity for concealing contrabands. The word (space/cavity) occurs in Singular. 71. In other words, starting with complaint before the court in which they talk of Specially made cavity on the floor of the said car the fact was exaggerated to impress the Hon ble Magistrate that in addition there were cavities on three sides of inside walls. It is interesting that in the show cause notice they reverted to space/cavity in singular; And to top it all the Collector discovered that the vehicle did not contain any specially designed cavity at all. In his own words the Collector says - While it is true that cavities have not been made in the caravan for concealing them, it is a fact that they were packed on the floor board of the caravan in between interstices covered with a thin ply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eign Indian currency under seizure was not liable to confiscation and released the same.] 78. The Collector has also released Item Nos. 1 to 37, i.e. all the miscellaneous goods except Item No. 38 as he was convinced that no offence was made out in respect of them. In other words, the charge of mis-declaration and illegal importation were not found sustainable in respect thereof. 79(i). The Collector also dropped the charges against the co-accused Mr. Rupper and Shri Goel and M/s. N.C. Singha and Sons. In other words, the allegation of racketeering was also incorrect. 79(ii). The Hon ble Magistrate also subsequently found that co-accused Shri Rupper as not guilty (in spite of his plea of guilty) as no case could be made out by the Department against him. 80. However, it is of concern that in spite of the Collector s verdict the department did not change its stand before the Magistrate s Court in so far as the appellant is concerned (although it admitted that there was no case made out against Mr. Rupper). 81. Even the copy of the Collector s order was produced only by the accused and there is nothing to indicate that the department took any steps to correct the impression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause of this reason that the Collector himself had released even articles like Zip fasteners (in large quantity) and declared that no offence was established in respect thereof. 85. And as we have seen there is a strong probability that in addition to Form X an oral declaration was also made in the docks but no formal cognizance was taken thereof as asserted by the learned Counsel and admitted as a possibility by the learned departmental representative; In any case, the benefit of doubt goes to the appellant. 86. The above discussion brings out in bold relief that (1) That the Collector has not examined all the relevant aspects of the matter. He had found that the departmental version was factually incorrect in crucial aspects and was moved to grant relief to some extent but did not fully take into account the implications of the inconsistencies in the officers versions and their actions and omissions with the result that their impact on the case as a whole was lost sight of. He relied albeit, to a limited extent, on the statement of the appellant but erred in doing so as the statement was of little evidentiary value in the circumstances of the case. The Collecto ..... X X X X Extracts X X X X X X X X Extracts X X X X
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