9911796707
TMI Blog2011 (2) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... not aware of mis-declaration - Further, according to the Section 115 (2) of the Customs Act, 1962, any conveyance used as a means of transport in the smuggling of the any goods shall be liable to confiscation, unless the owner of the conveyance proves that it was so used without the knowledge or connivance of the owner or his agent or a person in charge of the conveyance - The exception is provided in the proviso to provide that where any conveyance is used for hire, fine in lieu of confiscation cannot exceed the market price of the smuggled goods. - C/73 & 74/2008 - - - Dated:- 11-2-2011 - Hon ble Mr. B.S.V. Murthy, Member (Technical) Shri B.M. Dholakia, Adv. for the Assessee; Shri R.S. Sangia, SDR for the Revenue. Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant submitted that from the very fact that IGM was allowed to be amended shows that the department also accepted that no offence has been committed as regards excess quantity of diesel found in the bunker of the vessel. He drew my attention to the provisions of Section 30(3) of Customs Act, 1962 in this regard. According to the Section 30(3) of Customs Act,1962, if the proper officer is satisfied that the import manifest or import report is in no way incorrect or incomplete and that there was no fraudulent intention, the same may be permitted to be amended or supplemented. He also relied upon the decision of Hon'ble High Court of Kolkata as reported in AIR 1969 Calcutta 260 (V.56 C 47) to support this contention. 3. Learned SDR dre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd of the actual quantity found. Under these circumstances, it is very difficult to sustain the contention of the learned advocate that the department has failed to prove the mens-rea and also by allowing amendment of the IGM, the department has accepted the contention that there was no fraudulent intention and therefore, confiscation of the vessel and diesel cannot be sustained and penalty on Tindel and owner of the vessel cannot be sustained. The decision of Hon'ble High Court of Kolkata cited by the learned advocate is not relevant to the facts of the case. In the case before Hon'ble High Court of Kolkata, it was not the diesel found in the bunker that was not declared in IGM, but it was prohibited goods which were found in the ship load ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of diesel valued at Rs.3,88,800/-. Therefore, the fine cannot be considered to be excessive and therefore no reduction is warranted even though it was pleaded. 5000 ltrs of diesel which were declared in IGM has been confiscated under Section 119 of Customs Act, 1962. Section 119 of Customs Act,1962 reads as under: Any goods used for concealing the smuggled goods shall also be liable to confiscation. 7. Even though the Commissioner has confiscated the 5000 ltrs of diesel under Section 119 of Customs Act, 1962, in the order, there is no discussion and no reasoning has been given for coming to this conclusion. Section 119 speaks of the goods used for concealing the goods liable to confiscation. It is not known how 5000 lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rket price of the smuggled goods. 9. In this case, owner has not proved that she was not aware of the quantum of diesel on Board. The fact that she was monitoring diesel contained in the vessel and was arranging for the filling up the tank, surely goes against her. In the absence of any statement of the agent, it has to be assumed that the owner and master both were together in allowing IGM to be filed with excess declaration of diesel rightly. Therefore, the vessel has been rightly confiscated and the fine of Rs.20,000/- imposed is very nominal when we take into account the value of the vessel at Rs.40 lakhs and the value of the diesel held to be liable to confiscation at Rs.3,88,800/-. Therefore, fine in lieu of confiscation of the ve ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
