TMI Blog1984 (3) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... llant in Appeal No. 616/83 under Section 115(2) of the Customs Act, 1962 and imposing a redemption fine of ₹ 35,000 in lieu of confiscation and also imposing on each of the appellants, a penalty of ₹ 50,000 under Section 112 of the Customs Act, 1962. The brief facts relating to the appeal are as under :- 4. M.V. JAG DHIR, the vessel belonging to the appellant, M/s. Great Eastern Shipping Company Limited, Bombay, arrived at Port of Visakhapatnam on 16-8-1982 from the Port of Vancouver (B.C.) via Singapore and on 17-8-1982, Customs Officers started rummaging the same and the rummaging operations resulted in the recovery of the following goods from Hatch No. 6 in the ship. (a) Recovered from a rexine bag lying over the cargo (i) Johnie Walker Red Lable Scotch Whisky. ... 9 Qrt. Bottles (ii) Black White Scotch Whisky ... 4 Qrt. (b) Recovered from a cloth bag lying over the cargo (i) Johnie Walker Red Lable S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hn Player special cigarettes 1 crtn. 200 Nos. Further search on the vessel on 18-8-1982, 19-8-1982 and 20-8-1982 resulted in the recovery of the following goods from the general places as detailed below : Date Place of recovery Description of the goods recovered Qty. 18-8-1982 Recovered from the roof panelling in the unoccupied fitters cabin. 1. Key chains 2. Car Stereo Model 3. Marlboro cigarettes 4. White Horse Scotch 5. Children Safari suit 6. Champion Brand Shirts half sleeves 15 1/2 7. Children wear (Jaguar Sportwear) 8. Airborne T. Shirts 9. Small size T. Shirts 16 Nos. 1 No. 200 pcs 1 Qrt.. 1 No. 3 Nos 1 No. 1 No. 3 Nos. Recovered from the roof panelling petty officers messoroem 1. National Panasonic Radio Cassette Recorder Model RQ 543 ADS 1 No. 19-8-1982 Recovered from underneath the main Engine bed on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08(1) of the Customs Act, 1962 and their statements were recorded. On completion of investigations, show cause notices were issued to the appellants and others which eventually culminated in the orders now appealed against. 6. The learned counsel appearing for the appellants contended, inter alia :- (i) Paragraph 15 of the Show Cause Notice proceeds on the basis of an assumption that the Master, Chief Officer and Chief Engineer of the vessel colluded with the crew and allowed them to smuggle contraband goods by carrying them in the said vessel and allowing the crew to secrete the goods in the places under the charge of Chief Officer and Chief Engineer. Without any materials on record, merely on the basis of recovery, the adjudicating authority has obviously initiated proceedings with pre-conceived bias against the appellants and therefore, the order of adjudication is vitiated. (ii) Since no rules have been framed under Section 115(2) of the Customs Act, the appellants cannot be expected to prove that they had taken precautions, as prescribed under the Rules, which till date have not been framed and so the confiscation under Section 115(2) is bad in law. (iii) Proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h would render such goods liable to confiscation would attract a penalty on the person concerned. In the instant case, contraband goods admittedly have not been mentioned in the import manifest and are therefore, liable for confiscation under Section 111 of the Act. This confiscation is the result of a omission or commission on the part of the master of the vessel and therefore, the Master is liable for penalty under Section 112 of the Act. It is an admitted case that the officer who investigated the matter has been cross-examined by the appellants and the officer who issued the show cause notice did not do any investigation at all except issuing the show cause notice and under such circumstances the appellants would not be entitled to cross-examine the officer who issued the show cause notice nor can the appellants plead any prejudice for denial of the same. So far as the confiscation and the consequent redemption fine imposed on the appellants under Section 115 of the Act are concerned, there is a presumption against the appellants under Section 115(2) of the Act and the burden of establishing that transport of contraband goods was without the knowledge of the appellants is on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use even if rules have not been prescribed regarding the precautions to be taken, if a vessel is found to be transporting contraband goods, the vessel will be liable for confiscation under law unless the owner of the person-in-charge of the conveyance proves that it was so used without his knowledge or connivance. In the instant case, this onus of proof statutorily cast on the appellants has not been discharged. The mere ipsi-dixit of the Master that he circulated necessary instructions to the crew members against indulging in smuggling activities and giving other instructions would not help the appellants in any way. It is relevant to note in this context the ruling of the Supreme Court reported in 1983 E.L.T. 1392 in the case of Indo China Steam Navigation Co. Ltd. v. Jasjit Singh, Additional Collector of Customs, Calcutta and Others wherein the Supreme Court had occasion to interpret the true scope and effect of Section 52A of the Sea Customs Act, 1878 (8 of 1878) vis-a-vis Section 167 (12A) of the Act. Section 52A of the Sea Customs Act, 1878 prohibited entry of the vessel so constructed, adopted, adjusted, altered or fitted as to conceal goods which would entail confisca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any import manifest or any import report setting out the list of such goods. We are not going now into the question of the applicability of ratio of the ruling of the Bombay High Court to the facts and circumstances of this case because on factual analysis we are inclined to take the view in the instant case that the finding of the adjudicating authority under Section 112 of the Customs Act against the appellants is not maintainable. As rightly contended by the learned counsel for the appellants, when the adjudicating authority has clearly exonerated the Chief Engineer and the Chief Officer with reference to the charge under Section 112 of the Act, he should, on the same reasoning, have exonerated the appellants also. The adjudicating authority, in other words, cannot adopt different standards or yardsticks for evaluation of the same circumstances and material, one in favour of the Chief Engineer and Chief Officer and the other against the appellants. If the adjudicating authority had thought on factual analysis of the situation that the evidence on record would not warrant a finding against the Chief Engineer and the Chief Officer under Section 112 of the Act, we see no reason as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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