ORDER
G.N. Srinivasan, Member (J)
1. These are three appeals filed by the appellants against the decision dated 23/3/1988 made by the Collector of Customs (Preventive), Mumbai in Orders-in-Original No. 2 and 3/1988 whereunder he confiscated the vessel ‘AL-GILANI’ and imposed penalties on various persons including the appellant M/s. Allana Sons Pvt. Ltd. He also levied fine of Rs. 5 lakhs on the owner of the vessel under Section 74 of the Gold (Control) Act. The appeal is for quashing the penalty of Rs. 5 lakhs and penalty of Rs. 25,000/- each levied under Section 112(a) and (b) of the Customs Act.
2. Appellants are the owners of AL-GILANI and other Appellant was employed in the said ship. The vessel arrived at Bombay on 6.3.1986. On 7.3.1986 the Customs officials conducted a rummage. Officials took along with them other employees Pakkiri and Lorudhu along with their CDCs another employee called Saheb. Nothing was found on that day. On 8.3.86 they again conducted a search. They took away Abdul Khadir Mohommed Kapadi, the appellant in C/612/ 88 for interrogation. On the following day 9.3.86 Kapadi boarded the vessel and directed the officers to Hatch No. 5 which was thoroughly rummaged. It was found to contain 81 gold biscuits, 598 Citizen quartz wrist watches, textiles of foreign origin totally valuing at Rs. 23 lakhs which were recovered from aluminium sheets covering the insulation in the coil room of Hatch No. 5. The goods were seized which remained unclaimed. Proceedings were initiated under Customs and Gold (Control) Acts. The vessel was released on furnishing a bank guarantee of Rs. 20 lakhs. Subsequently on furnishing an additional security of Rs. 5 lakhs cash Appellant Allana Sons were allowed to scrap the vessel. A show-cause notice dated 2.9.86 was issued for initiating proceedings under Section 115 of the Customs Act read with Section 72 of the Gold (Control) Act. Show-cause also proposed to taking action against Appellant Allana Sons under Section 112 of the Customs Act read with under Section 74 of the Gold (Control) Act. No show-cause notice was issued to the master. After looking into the reply and hearing the parties the impugned order was made by the Collector inflicting the penalties and fines as mentioned above.
3. Let us deal with appeal No. C/604/88. It is contended by the Learned Counsel Shri Walvelkar for the owners that in terms of provisions of Section 115(2) of the Customs Act as it then stood confiscation of the vessel could be ordered only if the owner of the conveyance or animal is proved to have so used that conveyance without the knowledge or connivance of the owner himself or his agent or if any of the person incharge of the conveyance or animal and all of them taken such precautions against such use as/or the time being specified in the rules. Since the rules have not been made by the government the adjudicating authority cannot proceed under this provision. He also cited the decision of the Bombay High Court in Garware Shipping Corporation and P.R. Sawant Master of the Vessel v. J.H. Joglekar . The Ld. DR Shri V.K. Puri adopted the reasoning of Order-in-Orginal.
4. We have considered the rival submissions. Section 115(2) reads as under:
115(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 conveyance 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 and that each of them had taken all such precautions against such use as are for the time being specified in the rules:
5. From the reading of the said section it will be clear the Master incharge of the conveyance or owner of the conveyance are required to take all precautions against use of the conveyance for smuggling the goods and precautions required or those specified in the rules. it is not in dispute that no such rules have been framed providing for precautions which are necessary to be taken by the owner. It is therefore legally not possible for the authority to come to the conclusion that the owners have contravened the provision of Section 115(2). That portion of the order is unsustainable and it is set aside.
6. As far as the provisions of Section 112 is concerned the story is different. The principles of confiscation as contained in Section 115 is different from the levy of penalty under Section 112. Both sections are mutually exclusive. The findings of the adjudicating authority has shown clearly as to the reasons for the levy of penalty. The statements of Lourdhu, Kapadi and Pakkiri admitted their roles. The judgment in the case of K.I. Pawunni v. Asstt, Collector 1997 (90) ELT 241 fairly enables the authorities to find guilty of the offences on the basis of the statement of the co-accused. In the case of Naresh J. Shukhwani v. UOI the Supreme Court held that statement recorded under Section 108 forms a substantial evidence and person can be held to be contravened provisions of Customs Act. So also in the case of Surjeet Singh Chhabria v. UOI . Section 112(a) of the Act does not provide for mens rea. Whereas Section 112(b) of the Act provides for the same. We are therefore of the view that for the offence of Section 112(a) of Customs Act and provision of Section 74 of the Gold (Control) Act the case has been proved by the Customs authorities. We confirm the order to the effect that penalty is reduced by half. As stated earlier impugned order levying fine of Rs. 5 lakhs is set aside.
7. As far as other appeals of appellant Abdul Kadir Mohammed Kapadi are concerned as stated earlier, the appeals of the Kapadi under both cases, the impugned order is based on the statement of the co-accused and his own statements. As stated by the Supreme Court in the above mentioned cases, the conviction based on the statements recorded under Section 108 of the Act is a valid one. Hence the appeals of Kapadi are devoid of any merit. We, therefore, reject the same. Appeals of Kapadi are dismissed.
8. All the appeals are disposed of on the said terms.