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TMI Blog2013 (9) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... hat his request for provisional release of the vehicle was turned down and the Power of Attorney executed by the owner in his favour was not accepted. Besides, the penalty on the appellant was based on the premise that he has failed to appear before investigating officers in spite of repeated summons issued to him, giving raise to the suspicion that he was involved in the act of smuggling. The said basis has been found to be un-true. - order of confiscation and penalty set aside. - Decided in favor of assessee. - C/54/2011 - A-13/KOL/2013 - Dated:- 2-11-2012 - D M Misra, J. For the Appellant : Shri R N Bandhopandhyay, Consultant For the Respondent : Shri K P Das, Supdt (AR) Per: D M Misra : This is an appeal filed by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in the event, the fine is not paid within 15 days of the order, the vehicle shall be deemed to be confiscated absolutely to the Government Account. He has also imposed penalty of Rs.1,50,000/- on the appellant. Aggrieved by the said order, the appellant is in appeal before this Tribunal. 3.1 The ld. Consultant for the appellant submitted that the owner of the vehicle was the elder brother of the appellant i.e. Shri Ritwick Biswas, to whom the show-cause notice was also issued. He has submitted that in his statement dated 21.7.2009 before the Customs, Mr. Ritwick Biswas had categorically stated that the truck bearing No.WB 03-3947 was purchased by him and the monthly income from the truck was Rs.3,000/- and was given to the appellant, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tradictory, that is, at one instance, the Department refused to accept him as an authorized operator of the said vehicle and simultaneously, imposed penalty on him under Section 112 of the Customs Act, 1962 for contravention of the various provisions of Customs Act, 1962, to which he was not concerned. He has submitted that as per Section 115 (2) of Customs Act, 1962, the vehicle carrying offended goods, is liable to confiscation in the event, the owner of the said vehicle was found to be having the knowledge of the transportation of the offended goods in his vehicle. However, in the present case, Shri Ritwick Biswas was absolved from the charges of having any knowledge of transportation of Third Country Origin betel nuts in the said vehicl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... betel nuts of third country origin, which was later seized by the DRI Officials. It is not in dispute that the owner of the said vehicle was Shri Ritwick Biswas, who in his statement dated 21.7.2009 categorically stated before the Customs Authorities that day to day operation of the truck was being handled and looked after by his elder brother, Shri Ratan Biswas, the appellant herein, and in whose name he had executed the Power of Attorney, even though he continued to be the legal owner of the said vehicle. The ld. Adjudicating Authority dropped the proceedings against him on the said ground. However, the ld. Commissioner has imposed penalty on Shri Ratan Biswas on the ground that he did not turn up for giving evidence in the matter in spi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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