9911796707
TMI Blog1987 (11) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant. 2. The appellant M/s. National Harbour Launch Services is owner of a launch M.L. Yazdani and on December 28, 1980 at about 9.30 p.m. the launch was interrupted in Bombay harbour by Customs Patrol party, on suspicion. The search of the vessel resulted in the finding of (a) 8 plastic bags containing chemical powder totally weighing 300 kgs., (b) 18 bottles of beer, (c) 9 cartons and 5 loose packets of 555 cigarettes, and (d) 30 cassette tapes. Ten occupants of the vessel were arrested and these occupants include the Master of the vessel and two Khalasis employed by the owner. The vessel was seized under Panchnama and the statements of the occupants were recorded. The occupants admitted that the vessel was used for committing theft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im of the appellant that the provisions of Section 115(2) of the Customs Act were not attracted. The Tribunal felt that the material on record was enough to warrant the conclusion that the appellant - owner had knowledge that the vessel was used for the purpose of smuggling. The Tribunal while confirming the order of confiscation of the vessel, reduced the amount of fine to Rs. 3,000/- in lieu of the order of confiscation. The Tribunal felt that as the Additional Collector had imposed a personal penalty of Rs. 5,000/- on the main culprit Shah Alam, the punishment awarded to the appellant by way of fine of Rs. 30,000/-in lieu of confiscation was quite heavy. The order of the Tribunal was challenged by the appellants by filing Writ Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce used as a means of transport in the smuggling of any goods shall be liable to be confiscated unless the owner of the conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person-in-charge of the conveyance, and that each of them had taken all such precautions against such use as are for the time being specified in the rules. The plain reading of this sub-section makes it clear that the burden is cast upon the owner or his agent or any person in charge of the vessel to establish that the vessel was used for the purpose of smuggling without their knowledge or connivance. The expression "person-in-charge" has been defined under Section 2(31) of the Act and in relation to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Faizullabhoy on the decision in the case of Mogul Line Limited v. Additional Collector of Customs, Bombay and Another reported in 1982 (10) Excise Law Times, 397 is entirely misconceived because in that case a specific finding was recorded that the Master and the owner of the ship had no personal knowledge about the smuggling activities. In the present case, the only finding in favour of the owner is that he was not party to the conspiracy but this finding does not exonerate the person in-charge of the vessel who was occupant when the Customs authorities searched the vessel. 7. Mr. Faizullabhoy then submitted that in any event, the quantum of fine imposed in lieu of confiscation is excessive. We are unable to see any merit in the submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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