ORDER
K. Gopal Hegde, Member (J)
1. This appeal arises out of and is directed against the order bearing No. S/l4-4-132/Pint dated 30.9.1983 passed by the Additional Collector of Customs, Bombay.
2. The subject of challenge in this appeal is the order of absolute confiscation of the taxi bearing No. MRP 498 Under Section 115 of the Customs Act.
3. The order of the Additional Collector runs into 7 pages. Out of this, 6 pages consist of the submissions and the factum of issue of show cause notice. The actual finding is in one para which runs into 10 lines. The finding reads :
“The goods under seizure i.e. Radio Cassette Recorder etc. are of the type that are prohibited for import. At least their importation in trade quantity, as is the case is completely out of question. No wonder the parties concerned are absconding and no one has come forward to claim it. The provisions under Chapter IV-A have also been violated. The taxi MRP-498 has been used for carrying the smuggled goods knowingly. Looking at the nature of goods there should have been no doubt in the mind of the taxi driver that the goods were smuggled. At any matter, while the penal liability could be considered later, it is evidence that the vehicle is liable for confiscation Under Section 115 of the Customs Act. I, therefore, pass the following orders”.
4. Thereafter, the Additional Collector ordered absolute confiscation of the seized goods. He had also ordered absolute confiscation of the taxi Under Section 115 of the Customs Act.
5. As stated earlier, the subject of challenge in this appeal is the order of absolute confiscation of the taxi.
6. The contentions of Shri Bathija are two fold – firstly that under law the Additional Collector could not order absolute confiscation of the taxi even if it had been found to have been used for the carriage of smuggled goods; secondly that the Additional Collector’s finding that the taxi was used by the appellant for the carriage of smuggled goods knowingly is not supported by any evidence. Shri Bathija took me through the statements recorded in this case. He submitted that the incident took place in broad day-light. The appellant was running the taxi for hire. In the normal course of the business, he took the passengers at the airport in his taxi. While he was proceeding, he was signalled to stop and immediately, without even any hesitation and without even knowing the person who signalled, he stopped the taxi. It was only thereafter, he came to know the person who signalled to stop was the Customs officer. He fully co-operated with the Customs officer immediately on coming to know that the packages which had been loaded in his taxi contained contraband goods. He told the officer that he did not know as to the contents of the packages because it was not the procedure for the taxi driver to ask the contents of the packages. He had no reason whatsoever to suspect that the packages contained contraband goods. He was carrying the passengers as well as goods in the normal course of the business. Shri Bathija submitted that in a matter of like this, the question of taking precaution would not arise. He, therefore, prayed that the order of confiscation of the taxi may be set aside.
7. Shri Pattekar appearing for the Collector, however, submitted that admittedly the packages containing contraband goods were carried in the taxi. Therefore, the Additional Collector was justified in ordering confiscation. When questioned by the Bench as to whether the Additional Collector was legally correct in ordering absolute confiscation of a taxi, Shri Pattekar had to concede that having regard to the provisions of Section 115, the order of absolute confiscation may not be legally sustainable.
8. I have carefully considered the submissions made on both the sides and perused the records of the case. In the whole of the order of the Additional Collector there is not even a whisper that the appellant had known the passengers earlier to the date of the incident. There is no evidence that at the time when the passengers boarded the taxi the appellant had the knowledge about the contents of the packages which the passengers brought with them. It is not the case of the department that earlier to the date of the incident the taxi driver and the passengers had met at any time and arranged for the transport of the contraband goods. Except stating in one sentence in his finding that the appellant carried the contraband goods knowingly the Additional Collector had not chosen to assign even a single valid reason in support of his conclusion that the smuggled goods were carried in the taxi knowingly. It is not clear from what evidence or circumstance the Additional Collector held that the appellant carried in his taxi the smuggled goods knowingly. In his order the Additional Collector stated that “looking at the nature of goods there should have been’ no doubt in the mind of the taxi driver that the goods were smuggled.” Apparently, the Additional Collector had taken into consideration the existence of the Radio Cassette Recorders in the packages. But he had lost sight of the fact that at the time of carriage what was carried was only 2 closed packages and the existence of cassettee recorders came to light only when the Customs officers inspected the packages after opening them. The order of the Additional Collector is wholly unsatisfactory and based on no evidence and deserves to be set aside. If a taxi driver in his normal course of business had taken the passengers as well as their luggage not knowing the contents of luggage the taxi driver cannot be imputed with the knowledge of the existence of contraband goods inside the packages. Confiscation of taxi cannot be ordered in the absence of other evidences either direct or circumstancial. No such evidence is forthcoming in the instance case. The Additional Collector rightly did not think fit to impose any penalty on the appellant or any passengers. The order of the Additional Collector discloses that the actual owners of the goods have absconded. There is no evidence that either the passengers or the owners had informed the appellant as to the contents of the packages transported in the taxi. Just because the law provides that the vehicle can be confiscated for the carriage of contraband goods there is no duty cast to confiscate if the circumstances did not warrant such confiscation.
9. The above apart, under the proviso to Sub-section 2 of Section 115, the adjudicating authority is required to give an option to pay fine in lieu of confiscation where a conveyance used for the carriage of smuggled goods was a conveyance used for the carriage of goods or passengers for hire. The taxi is a conveyance used for carriage of passengers for hire. Therefore, even I were to accept (which I cannot accept) the finding of the Additional Collector, his order of absolute confiscation cannot be upheld as the same is against the clear provisions of the Customs Act, and is wholly illegal.
10. On consideration of all the aspects, I allow this appeal and set aside the order of confiscation and direct that the taxi be released to the appellant.