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TMI Blog2016 (5) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... vehicle No. HR-37AK-2073) Rs.5.00 Lakhs 5. C-76/2012 Smt.Rajwinder Kaur (Owner of vehicle No. MP-09KD-8067) Rs.5.00 Lakhs 6. C-77/2012 Shri Balbeer Singh Butter (Owner of vehicle No. MH-26H-5567) Rs.5.00 Lakhs 7. C-78/2012 Shri Indrajeet Singh Butter (Owner of truck No.MH-20AT-3067) Rs.5.00 Lakhs 8. C-79/2012 Shri Manoj Kumar Gupta (Owner of vehicle No. BR-06G-3650) Rs.5.00 Lakhs 9. C-80/2012 Shri Sohal Singh (Driver/owner of vehicle No. MH-26H-7612) Rs.10.00 Lakhs 10. C-81/2012 Shri Dhiraj Kumar Singh (Owner of Mobile No.9939984288) Rs.1.00 Lakh All the vehicles belonging to the above owners were also confiscated under Section 115 of the Customs Act, 1962 and option to redeem was extended to the owners by imposing a redemption fine of around 50% of the seizure value of the vehicles. 2. Shri N.K.Chowdhury (Advocate) appearing on behalf of the Appellants made the following arguments:- (i) That 13 vehicles were intercepted by the officers of DRI, Lucknow on 01.10.2009, at Sakri-Bahera Road based on specific information. That 11 trucks were found loaded with Betel Nuts and two trucks were found to be loaded with Garlic. (ii) That documents recov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at even the seizure value of vehicles taken do not indicate as to how the value of the goods were arrived at. (x) Learned Advocate relied upon the following case laws in support of his argument that foreign origin of the seized goods is not established and statements of co-accused cannot be relied upon.:- (1) Aakash Enterprise [2006 (205) ELT 23 (Bom.)] (2) Ritu Kumar [2006 (202) ELT 754 (Cal.)] (3) Laxmi Narayan Somani [2003 (156) ELT 131 (Tri.-Kolkata)] (4) Dungarmal Mohata [2006 (200) ELT 522 (Cal.)] (5) Dinanath Maurya [2001 (131) ELT 203 (Tri.-Kolkata)] (6) Sunderlal [2004 (165) ELT 250 (Tri.-Kolkata) (7) Dwarika Pd.Agarwal [2012 (275) ELT 0183 (Pat.)] (8) V.Muniyandi [2004 (167) ELT 215 (Tri.-Chennai)] (9) A.N.Shukla [2005 (187) ELT 269 (Tri-Del.)] (10) Amrit Foods [2005 (190) ELT 433 (SC)] (11) Mohatesham Mohd. Ismail [(2007) 8 Supreme Court cases 254] (12) Francis Stanly Alias Stalin [(2006) 13 Supreme Court cases 210] (13) Prakash Kumar Alias Prakash Bhutto & Othrs. [(2007) 4 Supreme Court cases 266] (14) Rafahat Ali [2002 (150) ELT 458 (Tri.-Kol.) (15) Bombay Bangalore Freight Carriers Pvt.Ltd. [2004(163)ELT 213(Tri-Del) (16) Manjee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat only on the directions of Economic Offenses Court, Mazaffarpur the owners came forward to give statements. That as per fifth bullet point of para 1.31 of Order-in-Original dated 18.01.2012 Shri Waryam Singh was asked as to why he did not enquire above his truck and file FIR for the period of interception by DRI on 01.10.2009 to third week of December, 2009. That he only replied that he neither enquired nor filed any FIR. (v) That Waryam Singh confirmed to be knowing Shri Parameshwar Singh, Indrajeet Singh, Bulbir Singh and Sohail Singh, drivers of other trucks seized in the convoy of thirteen vehicles. That he also expressed ignorance about the fake registration number plates and loading of betel nuts by drivers. (vi) That nobody has come forward to claim ownership of 1,78,438 kgs. of Betel Nuts, valued at Rs. 1,78,43,400/-, and 33,455 kgs. of Garlic, valued at Rs. 23,41,850/-, seized from the thirteen trucks. That the scale of value of seized goods and no one coming forward to claim ownership suggests the smuggled nature of goods. That the mere size of Garlic also makes it evident whether goods are of Chinese/foreign origin or not. (vii) Learned AR also made the Bench go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el Nuts and 16,120 kgs. of "Makai". It was also confessed that Betel Nuts were loaded in his truck at Tharhi Bazar (Nepal) in a godown situated behind hotel of Arjun Master, which is 100-150 meters away from border. It was further confirmed by Shri Mukhtiyar Singh in his statement dated 02.10.2009 that he and other drivers were introduced to one Shri Babloo Singh whose mobile number was 9939984288 and all instructions were received over the mobile and that extra registration number plates recovered from his truck were being used to conceal the identity of truck as and when required. Shri Mukhtiyar Singh also confirmed that on earlier occasions also he has carried Betel Nuts from Nepal and every time two sets of documents were provided, one set where consignments were mentioned as "Makai" and other set where consignments were mentioned as "Betel Nuts". Similar corroborative statements dated 02.10.2009 were given by the other driver Shri Santokh Singh and Khalasi Shri Karnail Singh. 4.2 None of these statements have been retracted by the persons who gave the statements. None of the Appellants sought for cross-examination of the persons who gave implicating statements. Investigations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Indian betel nut and garlic which is smaller in size and conical in shape also indicates foreign origin of the betel nut. Also, Madhubani District of Bihar is not known for growing, trading and marketing of betel nuts or Garlic. Moreover, District Madhubani is not directly connected with any area known for growing, trading or marketing of Betel nuts or Garlic. It is also seen that whole act of carriage and transportation was a well planned act of smuggling. The fake addresses of consignee, consigner, transport company, fake registration no. of truck fitted at the time of transportation, wrong addresses registration of trucks (which could be ascertained in few cases after lot of hard work and follow up action), unauthorized registration of mobiles etc., all lead to clear proof of illegal transport of goods and show malafide intention on part of the persons involved. The papers produced also contained misdeclaration of goods as maize. Indeed two sets of paper were prepared on declaring the consignment as maize and another as betel nut. The statement of Noticee No.2, 3 and 4 that goods were loaded at Tharhi Bazar, Nepal, also confirms the goods to be of 3rd Country origin and smug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermore now well settled that the court must seek corroboration of the purported confession from independent sources." 4.6.1 Learned Advocate of the Appellants failed to notice that in Para-19 of the same case law Apex Court observed it to be a case of retraction of a confession statement. In the present case there are no such retractions. Appellants never asked for cross-examination of witnesses. None of the persons came forward to claim the ownership of seized goods of more than Rs. 2.00 Crore in value. The act of running away of Drivers from the place of interception is not disputed by Appellants. It cannot be imagined that the drivers who ran away would not have informed the masters that goods/trucks have been detained by some agency. There is thus a plethora of circumstantial evidences corroborating the relied upon statements of drivers and khalasi. As per Section 115 of the Customs Act, 1962 a driver has to be considered as an agent of the owner and accordingly knowledge of the drivers will have to be considered as the knowledge of the owners of vehicles. Learned Advocate has mis-directed the argument, that in the absence of test report of the samples sent, it cannot be said ..... X X X X Extracts X X X X X X X X Extracts X X X X
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