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TMI Blog1992 (1) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... E 582 of the appellant on 10-5-1985 morning at Gandak Bridge. On demand, the driver and another person stated to be the Munshi produced one challan and one cash memo for 148 quintals of Jaggery in 200 bags, showing name of the consignee as Shri Arun Choudhury of Rampurwa, which the truck had crossed past much behind. On search, besides jaggery, toree (mustard seeds) and drum of diesel oil were found in the truck for which the driver could not produce any valid document and on interrogation stated the goods .were to be unloaded at Raniganj (Nepal). Some papers recovered from the Munshi, Shashi Kant Tiwari revealed that the goods were purchased by Shri Krishna Prasad Prop. M/s. Durga Grain Stores, Bagaha. The driver Shri Lakhichand Mahto stated that the owner of the truck was the present appellant, Jamadar Singh. The goods were weighed in presence of witnesses and valued at Rs. 44,337.75. These being found in the process of illegal transportation from India to Nepal were seized for violation of Section 11 of the Customs Act, 1962 read with Section 3(1) of the Imports and Exports (Control) Act, 1947. The driver and the Munshi were arrested under Section 104 of the Customs Act for atte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -6-1985 and hence they are unreliable. It was also contended that the version of the seizing Officer was corroborated by the search list. It is further corroborated by the statement of Shashikant Tewary dated 10-5-1985. He also stated that the ultimate destination of the seized goods was towards the territory of Nepal and the appellant who is the owner of the vehicle had consciously allowed the same to transport these goods to a foreign territory and the attempt to transport the same to Nepal, by the appellant is conclusively proved on the facts and circumstances of this case. Hence he justified the orders of confiscation of the truck and the imposition of penalty on the appellant. 9. We have considered the submissions of both the sides. The points that arise for our consideration are - (i) Whether the truck in question can be confiscated on the ground that the same was engaged for illegal export of the goods in question to Nepal from India? (ii) Whether the imposition of penalty on the appellant is in accordance with the law? 10. Point No. (i) : Under Section 115 of the Customs Act, 1962, if any conveyance is used as a transport in the smuggling of any goods the same shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pe of the show cause notice. He based his conclusions on the basis of the depositions of the seizing Officers, as contained in the report dated 6-6-1985. He also held that the goods under seizure were actually intercepted just near the entrance of Gandak Bridge which adjoins India and Nepal at the night of 9-5-1985. He also placed reliance on the confessional statement of Sashikant Tewary wherein he stated that the goods in question were bound for Nepal via Gandak Bridge. But he admitted that the documents produced by the appellant show that the same were meant for Arun Choudhury of Rampurwa village. He also relied on the confessional statement of Lakhichand Mahto, the driver, which is dated 10-5-1985, wherein he alleged to have confessed that the goods were being taken to Nepal via Gandak Bridge. In view of the above evidence on record he stated that a case is made out with respect to the attempt to export these goods to Nepal. In addition to the above evidences he also relied on the search list dated 10-5-1985 and seizing Officer s report dated 6-6-1885 which established that the goods were being transported to Nepal. These are the only materials relied on by the learned Addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers and documents were also recovered from the munshi and driver of the truck. As the seized jaggery was perishable items it was put to auction on 16-6-1985 and highest bid amount of Rs. 29,700/- collected and the jaggery in question delivered to the highest bidder. Now therefore Sl. No. 1 to 5 as stated above are required to show cause to the Additional Collector, Customs (P), Muzaffarpur within 10 days of receipt of this notice as to why the aforesaid seized goods along with truck should not be confiscated under Section 113 and 115 of the Customs Act, 1962 and why not penalty imposed under Section 114 of Customs Act, 1962 read with Section 3(i) of Imports Exports (Control) Act, 1947 should be imposed." After this portion of the show-cause notice it was mentioned only as to why the conveyance should not be confiscated and as to why the goods should not be confiscated under Section 113(d) of the Act and penalty should not be imposed under Section 114 of the Act ibid. It was also mentioned thereafter that this appellant along with three others should show cause against the same. A perusal of the show cause notice clearly reveals that none of these materials relied on by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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