9911796707
TMI Blog1994 (6) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... e instituted against the appellant on the ground that the vessel in question which belonged to the appellant was used as a means of transport in the smuggling of watches under seizure with the knowledge of the Tindal and the crew members resulting in the impugned order. The learned Counsel contended that initially an order of adjudication was passed on 1-10-1980 by the Collector of Customs, Bangalore, absolutely confiscating the wrist watches kept concealed in the vessel and also the vessel in question. The learned Counsel submitted that he is not concerned about the watches and the issue is with reference to the confiscability and also the absolute confiscability of the vessel under the provisions of the Customs Act, 1962, the `Act for sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is to pursue an appeal or revision as are available under the Customs Act, because the order gives the appellant an independent cause of action." The learned Counsel contended that it is not disputed by the Department that the vessel in question was used as a conveyance for the carriage of goods by hirer and therefore in terms of Section 115(2), the Department has no option except to give an option to the appellant to redeem the same on payment of fine. The learned Counsel submitted that the appellant was not challenging the confiscability of the vessel under Section 115(2) and pleaded that the confiscation cannot be an absolute confiscation, but one subject to necessarily an option being given to the appellant in terms of Section 115(2). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought to be exported and therefore the prohibitionary clause in the first part under Section 125 would not apply. Therefore, in regard to the second part of Section 125, the appellant should necessarily have been given an option of redemption. Since this has not been done, the impugned order is not sustainable in law. The learned Counsel further submitted that the appeal may not be remanded at this stage as it has had a chequered career since 1979 and the vessel also has been auctioned by the Department without notice to the appellant. 3. Shri Gregory, the learned SDR and Shri Jeyaseelan the learned D.R. took us through the various sections of the Customs Act as nice questions of law were involved and argued by the learned Counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs relating to the existence of the cavity in the vessel and other circumstances are set out. The original adjudicating authority in the first order of adjudication proceeded under Section 115(2) as evidenced from para 7.2 extracted above, and it is only in this context the High Court remanded the matter. We note that during the pendency of the writ appeal, the second order of adjudication came to be passed confiscating the vessel absolutely under Sections 115(1)(a) and 115(2). So far as Section 115(1)(a) is concerned since there was not a specific charge in the show cause notice and since the appellant was not specifically put on notice with the necessary ingredients thereunder and as mentioned above since the first adjudicating authority ..... X X X X Extracts X X X X X X X X Extracts X X X X
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