Vishwanath Gupta vs Cegat & Ors.
2000 Latest Caselaw 629 Del

ORDER

Arijit Pasayat, CJ.

1. Rule D.B.

2. Since a short point is involved, with the consent of both parties, the matter is taken up for final disposal.

3. By this petition, petitioner has questioned legality of order passed by the Customs, Excise & Gold (Control) Tribunal (for short the CEGAT) in Appeal Nos. C/164/99-NB and C/190/99-NB, disposed of by order dated 27th September, 1999.

4. Factual position, so far as relevant for appreciating rival stands, is as follows:

Notice was issued under Section 124 of the Customs Act, 1962 (for short the Act), inter alia, requiring the petitioner to show cause as to: (a) why the seized silk yarn of third country origin should not be confiscated under Section 111(d) read with Section 118 of the Act for having been brought into India in violation of notification No.9/96 dated 22nd January, 1996 issued under Section 11 of the Act read with Section 3 of the Foreign Trade (Development & Regulation) Act 1992 (for short the Foreign Trade Act); (b) why the PVC scrap of Indian origin should not be confis dated under Section 119 of the Act for having been used for concealment of smuggled silk yarn of third country origin; (c) why the truck bearing No. UP-80-G-9378 should not be confiscated under Section 115(2) of the Act for having been used in the transportation of smuggled goods and (d) why penal-

ty should not be imposed under Section 112(b) of the Act for being concerned in smuggling of contrabands and goods in question. Notices were issued to the petitioner, one Yashpal Singh Bhadoria, Ashok Kumar Yadav and others. Role of Yashpal Singh Bhadoria in the matter has significance and we shall deal with it later. It is to be noted that said Ashok Kumar Yadav was held to be driver of the seized truck and he was absconding since the date of seizure of the truck. The Commissioner of Customs, Lucknow (in short "Commissioner") directed confiscation of the goods seized as being un-claimed under Section 111(d) of the Act. Seized PVC scrap of Indian origin was also confiscated under Section 119 of the Act. Option was given to petitioner to redeem the same on payment of redemption fine which was to be exercised within a period of one month of the receipt of the order. Confiscation of truck was directed under Section 115 of the Act and option was given to redeem the same on payment of redemption fine of Rs.1 lakh which was to be exercised within one month of the receipt of the rder. Penalties were also imposed on the petitioner, Yashpal Singh Bhadoria, Panchdev Singh, Ashok Kumar Yadav i.e. driver of the vehicle. It was the case of petitioner that Yashpal Singh Bhadoria was in-charge of operation of the truck in terms of power of attorney given and he had engaged the driver. Order of the Commissioner was challenged by the petitioner and Yashpal Singh Bhadoria before CEGAT. Both of them took the stand that whatever was alleged to have been done, was without their knowledge and/or consent. So far as question of leviability of penalty in terms of Section 112(b) of the Act is concerned, CEGAT, inter alia, recorded the following finding:

"xxxxxxxxxxxxx

In the instant case, there is no material on record to show that the two appellants were concerned with the carrying, removing, depositing etc. or in any other manner dealing with the smuggled goods with the knowledge or with reason to believe that the goods are liable to confiscation under Section 111."

So far as direction for confiscation of the truck is concerned, it was held that the stipulations under Section 115(2) of the Act exist and, therefore, the truck was liable for confiscation.

5. In support of the petition, it has been contended by learned counsel for the petitioner that so far as levy of penalty under Section 112(b) of the Act is concerned, there is a categorical finding that the petitioner and Yashpal Singh Bhadoria did not have any knowledge or reason to believe that goods are liable to confiscation under Section 111. According to him, the same analogy also applies to a case under Section 15(2) of the Act and, therefore, CEGAT was not justified in holding that the direction for confiscation was in order.

6. Learned counsel for respondents on the other hand submitted that the conditions stipulated in 115(2) are conceptually different and, therefore, the finding, if any, recorded in respect of imposition of penalty under Section 112(b) did not have any application to a case of confiscation under Section 115.

7. In order to appreciate rival submissions, it is necessary to see the relevant portions of Sections 112(b) and 115. They read as follows:

"112. Penalty for improper importation of goods, etc:

Any person.-

(a) xxxxxx

(b) Who acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111 shall be liable.....

115. Confiscation of conveyances:

The following conveyances shall be liable to confiscation:

(1) xxxxxxxx

(2) Any conveyance or animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation, unless the owner of the convey ance or animal 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 or animal."

8. The owner of the conveyance is required to prove that it was used in the carriage of any smuggled goods or as means of transport in the smuggling of any goods without his knowledge or connivance. Had that been the only requirement, the stand taken by the petitioner would have been on erra firma. But the further requirement is that the owner must prove that not only he himself, his agent, if any, and the person in charge of the conveyance did not have the knowledge or was not party to a connivance. Driver of the vehicle is the person in charge of the conveyance. Therefore, petitioner was required to prove that even the driver, who was the person in charge of the conveyance, did not have the knowledge that the vehicle was being used as means of transporting smuggled goods or for carriage of any smuggled goods or did not connive for it. This aspect is within the special knowledge of the owner and, therefore, onus has been statutorily placed on him. A fact is said to be proved when, after considering the matter before it, that Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. "Prove" means to establish as true by argument or evidence, to subject to a testing process. "Proof", said Lord Moulton in Hawkins Vs. Powlies Coal Co, Ltd., (1911) 1 KB 988, does not mean proof to rigid mathematical demonstration, because it is impossible. It means such evidence as would include a reason-

able man to come to a conclusion". In the same case Lord Wrenbury observed "All that can be done is to adduce such evidence as that the mind of the tribunal is satisfied tat the fact is so. This may be done by direct evidence or by inference from facts, but the matter must not be left to rest on surmise, conjuncture or guess." It is to be noted that the driver did not participate in any of the proceedings. What Section 115(2) requires is that the owner has to prove the lack of knowledge or absence of connivance on the part of other specified persons in addition to himself. How same would be proved would depend upon the facts of each case. Therefore, the mere fact that a finding has been recorded that petitioner did not have the knowledge is not sufficient to take him out of the requirements of what is to be proved in terms of Section 115(2) of the Act. CEGAT was justified in its conclusion that vehicle was liable to be confiscated.

9. Above being the position and in the absence of proof by the petition-

er, as required under Section 115(2) of the Act, this petition has no merit nd is dismissed.