ORDER
K. Gopal Hegde, Member (J)
1. These two appeals arise out of a common order in two appeals bearing numbers 2100 and 2101 of 1980, dated 24-11-1980 passed by the Central Board of Excise and Customs.
2. As these appeals though heard on different dates, as they involve common questions of law and facts, they are clubbed together and hence this common order.
3. The brief facts necessary for the disposal of these appeals may be stated as under :
(a) Shri P.D. Zala, Company Commander, S.R.P. on 30-1-69 was proceeding in a jeep along with some police constables to catch smugglers in foodgrains who was smuggling foodgrains to Vapi from Daman or Gujarat. While he was so proceeding he saw a truck coming without light. He ordered the truck to stop. On questioning the driver of the truck, he revealed that the truck belonged to Appellant J.L. Sharma and the truck was being taken to Ahmedabad after unloading the goods at Harji. Among other things the driver informed that his master had instructed that he should take the truck to Ahmedabad and halt it at Panchkuva and if any person comes to him with his chit the truck should be given to that person. Accordingly he halted his truck at Panchkuva on 29-1-69. At about 4.00 or 4.30 P.M. a person came to him with a chit bearing the truck number and the endorsement of his master. He, therefore, handed over the truck to that person who has given his name as Karimbhai having a shop in Crawford Market at Bombay. The driver further stated that on the same date at about 8.00 P.M. Karimbhai brought back a loaded truck and asked him to follow a white Ambassador Car and accordingly he followed the Ambassador Car. At Hareja naka he was instructed to go ahead on the National Highway upto Baroda and from Baroda the truck should be driven via Rajapeepla Road upto Ankleshwar and from Ankleshwar the truck should be again taken on the National Highway. He was also informed that the truck contains 62 bags of Berries and 20 slabs of silver. As instructed by Karimbhai he drove the truck on the National Highway from Ahmedabad to Baroda and on the way he gave a lift to one Shri Bhagwat Goswani who was to go to Bombay. It was also stated by the driver that when he halted the truck at Arthur check post at Vapi, Karimbhai who had come in white Ambassador car met him and instructed him to follow the car. Accordingly he followed the car. After he proceeded 3 miles the car was stopped and one person from that car got into the truck and sat beside the driver. When the truck halted at Mohangam Railway crossing 4 or 5 labourers boarded the truck. The person who got into the truck earlier switched off the headlight and instructed the driver to take the truck as directed by him and the truck was taken into a Wadi of Banana. Before that Shri Bhagwat Goswami was requested by that person who got into the truck to get down and he got down. At the Wadi the labourers unloaded the bags of Berries and also 20 slabs of silver. Thereafter they loaded back the bags of Berries. Subsequently the driver was instructed to proceed to Bombay and it was further instructed that until he reaches the National Highway the headlight should not be switched on. The driver further stated that when he proceeded a furlong away from the wadi the officers of S.R.P. intercepted the truck and they also conducted the search of the truck. Thereafter they took the key of the truck and took Shri Bhagwat Goswami in their jeep and proceeded towards Wadi. After half an hour or so they returned the key to the driver and instructed him to follow the jeep. The truck was taken to police station at Wadi and the officers went to the office of the Customs. It was in the statement of the driver that half an hour thereafter officers of Customs came and questioned him. Before them he stated that he had gone to unload one engine. When they insisted to tell the truth he disclosed the entire truth. He also stated that Shri Bhanabhai was well acquainted with his employer, but he himself does not know him. He further stated that no bill for the silver had been given by any one to him. He had also not taken any silver earlier to the Wadi of Bhanabhai.
(b) The Customs Superintendent Shri Mahida after interrogating the driver Benichand proceeded towards the Wadi of Bhanabhai. On the waynear the Wadi he and others saw one jeep coming towards them from Moti Daman. Shri Mahida stopped the jeep, one person Abubakar was driving the jeep. Thereafter Shri Mahida and others proceeded to the Wadi and the driver of the truck who was with them showed them the place where the silver was unloaded. They found a person sleeping at that place, but that person ran away on seeing them. They also noticed another truck with dim light halted at a distance of 100 yards and in that truck they found a person by name Srtankar Hari who was the brother-in-law of the Appellant Shri Banabhai Khalpabhai Patel. Thereafter they found the earth freshen and unturned near the well. Therefore they digged that spot and found 101 slabs of silver valued at Rs. 18,08,850/-. They seized the silver under the panchanama. It appears the seizure was first effected by the police. Thereafter the Customs Superintendent Shri Mahida seized the said 101 slabs of silver. The police panchanama was dated 31-1-69 and the customs panchanama was dated 1-2-69. One of the panch witnesses, namely, Shri Nagindas Chhabildas Chokshi was a common panch.
(c) The Customs Superintendent Shri Mahida recorded the statement of Abubakar, the jeep driver. Among other things he has stated that he was the jeep driver of Appellant Bhanabhai Khalpabhai and the Appellant had gone to Bombay. But he does not know whether the Appellant had gone to Bombay by rail or road. He also stated about the Customs Superintendent and others going to Wadi and recovering silver slabs. It was also stated by him that 101 slabs of silver were loaded in his jeep and were brought to Vapi. (d) During the course of investigation the Customs Superintendent recorded the statements of several witnesses including the cleaner of the truck who corroborated the version of the driver. One Manubhai Bhanabhai who among other things stated that the wadi belonged to Shri Bhana Khalpa; so also the truck which was found near the well. These persons further stated that one Kedar Dhobio was the caretaker of the Wadi. The other witness Shankar Haribha whose statement was recorded by the Superintendent stated that he has been in the employment of Bhana Khalpa and through Shri Dubla Chhagan Mangal he came to know that one truck had come into the wadi and unloaded the goods near the well. He saw the truck of Shri Bhana Khalpa and also found Ramana sleeping in the open near the well. He further stated that the truck which was halting near the well was brought by Shri Abubakar from the house of Shri Bhana Khalpa. He also stated that Shri Bhana Khalpa was doing black-marketing and was also involved in the large-scale smuggling of goods. (e) In his statement the Appellant Shri J.L. Sharma while admitting that the truck MHT 2304 belonged to him, denied that he had given any instructions to his driver to halt the truck at Panchkuva or to hand over the truck to a person who brings his chit. He also stated that he does not know any person by name Karimbhai. He further stated that 62 bags of Berries were not loaded in his truck at his instructions. He further denied his acquaintance with Shri Bhana Khalpa. In his further-statement the Appellant J.L. Sharma stated that he had dismissed his driver Benichand. He had not arranged for the bail of his driver but it was arranged by the Appellant Bhana Khalpa. (f) In his statement the Appellant Shri Bhana Khalpabhai while admitting that Shri Shankar Hari is his brother-in-law denied that 101 slabs of silver were recovered from his Wadi. He also denied that Wadi belonged to him. (g) In his statement Shri Mohmed Hussein Abdulkarim among other things stated that the truck MRT 2751 was registered in his name by one Abdul Rashid Abdul Majid, but he did not know from whom the truck was purchased and for how much it was purchased. Shri Rashid learnt that the truck was to be sent to Shri Bhana Khalpa for loading and unloading of smuggled goods. He also stated that Bhana Khaipa was loading the silver and unloading gold and textiles. He further stated that he had no specific knowledge about the truck or as to why it was utilised for the purpose of loading and unloading of smuggled goods.
(h) After the completion of the investigation, show cause notices were issued to the present Appellants and four others alleging that the silver seized are prohibited goods and if they are to be exported out of India without a licence it would be a violation of Imports and Exports (Control) Order as well as Foreign Exchange Regulation Act. It was further alleged in the show cause notice that the place of seizure is a place situate within 50 kms. from the coast of India and that silver was transported within specified area without transport voucher, without maintaining accounts and therefore all the six persons were called upon to show cause as to why silver should not be confiscated under sub-sections (c), (d), (f), (g) and (k) of Section 113 of the Customs Act and why the truck bearing No. 2304 should not be confiscated under Section 115 and why personal penalty should not be imposed on them under Section 114.
(i) The Collector of Central Excise and Customs after affording personal hearing and after considering the materials on record ordered confiscation of the silver in a separate proceedings and also ordered confiscation of the truck bearing No. MTH 2304, but allowed redemption on payment of a fine of Rs. 15,000/-. He also imposed a penalty of Rs. 25,000/- on the Appellant Bhana-bhai Khalpabhai Patel and Rs. 7,500/- on the Appellant J.L. Sharma. He had also imposed penalties on five others with whom we are not concerned in these appeals.
(j) Being aggrieved by the confiscation of the truck and personal penalty of Rs. 7,500/- Shri J.L. Sharma preferred an appeal to the Board; being aggrieved by the personal penalty of Rs. 25,000/- the Appellant Bhanabhai Khalpabhai Patel preferred an appeal before the Board. The Board clubbed both these appeals and rejected both the appeals by a common order. These Appellants preferred Revision Applications before the Central Govt. which are now under consideration as appeals.
4. Shri Madhu M. Patel, the learned Advocate for the Appellant J.L. Sharma submitted that there was hardly any evidence to establish that the silver seized was attempted to be exported. The statements of the driver and cleaner were obtained by the customs officers in the police station and therefore they cannot be considered as voluntary. Even otherwise the statements are not reliable. He urged that according to the statement of the driver the instructions given by Sharma was to hand over the truck to a person who brings a chit with the truck number and bearing his signature. Even though the driver was apprehended by the police and later questioned by the customs the so-called chit was not seized nor produced during the adjudication proceedings and also in the criminal prosecution launched against the appellant J.L. Sharma. Shri Madhu Patel further urged that if the driver had acted according to the instructions of the owner he would not have been later dismissed by the owner. If the driver had unauthorisedly used the vehicle in the carriage of silver, even assuming that silver was a smuggled item the vehicle cannot be ordered to be confiscated. Since the owner had neither knowledge of or connived in the carriage of the smuggled goods. There was clear instructions to the driver not to carry any smuggled goods. Therefore the reasonable precautions were taken by the owner and as such the confiscation of the truck under Section 115(2) particularly in the absence of any rule made thereunder was totally unjustified. Shri Madhu Patel further urged that the seizure took place on 31-1-69 but the show cause notice was issued on 20-1-70 after a period of six months and therefore the seized goods should have been returned and no action can be taken to confiscate the seized goods which are required under law to be returned for not issuing of the show cause notice within a period of six months as required under Section 110 of the Customs Act. In support of his contention Shri Madhu Patel relied upon the following decisions :-
(i) 1982 E.L.T. 273 (Bom.) (ii) 1982 E.L.T. page 902 (Cal.) (iii) AIR 1975 Calcutta page 368. (iv) AIR 1985 (22) E.L.T. page 44 (Kerala). In support of his contention that in the absence of rules made under Section 115 the truck cannot be confiscated Shri Madhu Patel relied on the following decisions :- (a) 1982 Tax Law Reporter N.O.C./69 Madras. (b) 1984 (15) E.L.T. page 375 (Bom.) (c) 1982 E.L.T. page 393 (Bom.)
It was also contended by Shri Madhu Patel that the driver and cleaner are co-accused and their evidence cannot be relied upon to implicate the Appellant J.L. Sharma in the absence of corroborative evidence. It was also contended by Shri Madhu Patel that there was prosecution launched against the appellant and his conviction was set aside by the High Court and therefore the personal penalty imposed on appellant cannot be allowed to stand. He, therefore, prayed that the appeal of Shri J.L. Sharma may be allowed, the penalty imposed on him may be set aside and the order of confiscation of the truck and imposition of fine in lieu of confiscation may also be set aside.
5. Shri Pattekar appearing for the Respondent Collector, however, submitted that the Collector had extended the period of six months for issue of show cause notice as provided in the proviso to sub-section to Section 110 and therefore there is no illegality in the issue of show cause notice. Further the goods seized would not become liable to be returned and as such the contention urged on behalf of the appellant that the goods cannot be confiscated because it was liable to be returned is not tenable. Shri Pattekar then contended that the adjudication proceedings and the criminal prosecution are two independent proceedings. The finding of an authority in one proceeding is not binding on the authority in the other proceedings. In that connection Shri Pattekar placed reliance on the decision of the Bombay High Court in Writ Petition No. 1004 of 1981 decided on 18-2-1985. It was also submitted by Shri Pattekar that in his statement the driver had given worth of details and therefore that should be relied upon without any further corroboration. He also urged that the provisions of the Evidence Act are not applicable to adjudication proceedings.
6. Shri Pochkhanwala, the learned Advocate of the appellant Bhanabhai Khalpabhai Patel (hereinafter referred to as B.K. Patel) submitted that the truck was intercepted by Special Reserve Police and they did not find any silver slabs. Even according to the Department number of silver slabs recovered were 101 but the truck in question was stated to have transported only 20 slabs. No investigation was carried out as to who brought the remaining 81 bars seized in the case. The appellant was implicated solely on the ground that the wadi belonged to him. But then the appellant was not the owner of the wadi. It stood in the joint names of his wife and others. Shri Pochkhanwala further submitted that there was no evidence whatsoever that the appellant transported the silver bars or attempted to export them. Thus the appellant committed no offence. In the circumstances no penalty could be imposed on the appellant. It was also contended by Shri Pochkhanwala that the proceedings before the customs authorities is a quasi-criminal and the appellant had a right to cross-examination of witnesses but such a right has been denied and therefore there had been denial of principles of natural justice and as such the order passed by the Collector is illegal. It was also submitted by Shri Pochkhanwala that nexus between the appellant B.K. Patel and the seized silver had not been established. There was not even an iota of evidence to establish that the silver belonged to the appellant or he was in any way concerned with the seized silver. No witness has stated that the silver belonged to the appellant. On the other hand the evidence was that anybody could have access to the wadi. Shri Pochkhanwala then submitted that there is a clear distinction between attempt and preparation. Evidence at best established preparation for the export of the silver slabs and the evidence did not establish an attempt to export silver. In the said circumstances no penalty can be levied on the appellant, as no act or commission of his rendered the seized goods liable to confiscation. Shri Pochkhanwala in support of his contention relied upon a decision of the Bombay High Court reported in 1972 B.L.R. page 575 Yusuf Patel v. R.N. Shukla. Finally, Shri Pochkhanwala submitted that there was no rhyme or reason for the imposition of penalty. The Collector had imposed a penalty of Rs. 7,500/- on the driver, Rs. 4,000/- on the cleaner who have transported the silver slabs to the wadi. The Collector has imposed penalty of Rs. 7,500/- on the owner of the truck through which the silver was transported, whereas he had imposed a penalty of Rs. 25,000/- on the appellant without there being any evidence that silver in question was transported by him or attempted to be exported by him, but only on the ground they were found stored in the wadi which also did not belong to him. He, therefore, prayed that the penalty imposed on the appellant may be set aside.
7. Shri Pattekar appearing for the Collector, however, supported the order passed by the Collector and confirmed by the Board. Shri Pattekar submitted that there is evidence of the driver of the truck to implicate the appellant. The Collector has disucssed the evidence against the appellant and had given reasons and therefore there was no ground to interfere with that part of order or order of the Board. Shri Pattekar also submitted that confiscation and penalty are justified in the circumstances of the case.
8. I have carefully considered the submissions made on both the sides. Having regard to the rival contentions the points that fall for determination in these two appeals are :-
(i) Whether the imposition of penalty on the two appellants in the facts and the circumstances of the case was unjustified; and (ii) Whether the order of confiscation of the truck bearing No. MHT 2304 is illegal.
9. Before I proceed to consider the points set out above, let me proceed to consider the orders passed by the Collector as well as by the Board. Under the heading “findings” the Collector has discussed the liability of the two appellants for penalty under Section 114. The Collector has observed that the evidence of the driver, Benichand clearly establishes that Shri B.K. Patel was acquainted with J.L. Sharma, the employer of the driver. Further according to the driver’s statement his master had instructed him to halt the said truck at Panchkuva at Ahmedabad and that the truck should be given to the bearer of the chit and the truck was in fact given to the bearer who produced the chit bearing the signature, of Sharma. Further the two bills seized contains the address of Karimbhai, Crawford Market and the driver’s evidence that it was Karimbhai who produced the chit and took the truck and brought back loaded with silver and berries. Further Shri B.K. Patel in his statement dated 16-5-69 admitted that one white Ambassador Car was lying in his wadi. He had further admitted that he bought this car from Bombay from one Karimbhai. Shri Benichand the driver in his statement has given the number of the white car as MRY 8971. Hence there is every reason to hold that irrespective of whether or not the place from where these 101 slabs of silver were recovered belonged to Bhanabhai Khalpabhai Patel who is concerned in the transport of 101 slabs of silver to that wadi without requisite transport voucher as required under Section 11K of the Customs Act, 1962. The Collector further observed “he, therefore, did at least about the doing or omission of such an act which rendered the said 101 slabs of silver liable to confiscation under section 113(1) of the Customs Act, 1962. I, therefore, further hold that since there is a prohibition not to transport the said silver in the specific area without the possession of required transport voucher during the carriage of the said silver the goods in respect of which the act or omission was done was imposed under Section 11K of the Customs Act, 1962. I, therefore, hold that Shri Bhanabhai Khalpabhai is liable to penalty under Section 114(1) of the Customs Act, 1962 and since quantity of silver so transported is huge and the place wherefrom the silver was recovered is so abnormal as to raise the conclusion that that silver was the export goods and was in the process of exportation to a place outside India as a part of execution of well planned conspiracy to smuggle huge silver out of India, I hold that he is liable to a penalty under Section 114(1) of the Customs Act, 1962. The evidence of other witnesses viz. Shri Shankarbhai Haribhai, Shri Manubhai Bhanabhai and Shri Abubakar Ibrahim are also hinting in that direction”. I may pause here and point out that the driver of the truck except stating that the truck was taken to the wadi of Bannana had not stated that there was any instructions from his master to take the truck to that wadi or that B.K. Patel had come to take the truck or got loaded the silver slabs into the truck. The cleaner of the truck also did not implicate B.K. Patel. According to the statement of the driver it was one Karimbhai who produced the chit bearing the signature of his master and the number of truck and to him he handed over the truck and that Karimbhai brought back the truck loaded with silver and 62 bags of berries and thereafter at the instructions of Karimbhai he took the truck to the wadi of Bannana. During the investigations the statement of Karimbhai was recorded. Karimbhai did not implicate B.K. Patel. He also did not state that he took the truck producing the chit and got loaded with silver slabs. The other witness from whose statement the Collector relied also did not state that the silver slabs were got transported by the appellant B.K. Patel. No investigation was made wherefrom the remaining 81 slabs were brought or who brought them or when they were brought. All that the Department was able to establish was that 101 slabs were found in the wadi which according to the Department belonged to the appellant though the appellant contended that it was the wadi of his wife and some others. Even assuming that slabs were found in the wadi of the appellant, that by itself would not be sufficient to prove that they were transported to the wadi by the appellant in violations of provisions of Section 11K of the Act. Therefore that part of the finding of the Collector is based, more on assumption than on evidence. Similarly, the Collector’s finding that because of the huge quantity of silver and the place where it was kept and the manner in which it was kept raises the conclusion that the silver was to be exported and was in the process of export is also not based on evidence. Admittedly all the 101 slabs of silver were found hidden underneath the earth near a well in the wadi. The Department was able to establish that this wadi. was situate within 50. kms. on the coast, but that would not be sufficient to establish that there was an attempted export. There is considerable force in the contention of Shri Pochkhanwala that there was only preparation to export and not attempt. In the decision relied upon by Shri Pochkhanwala the Bombay High Court had ruled that “an accused person commits the offence of “attempt” to commit a crime when, with the intention of committing that crime, he does an act or acts which constitute a direct movement towards its commission, but the actual commission of the crime is frustrated by reason of the fact that it is interrupted by circumstances independent of his volition. Such act need not, however, be the penultimate act towards the commission of the crime”. In the judgement of the Bombay High Court referred to above the following facts were established :-
(i) that the petitioner was a yarn merchant and a commission agent, and was not a dealer in silver;
(ii) that it was only on December 24, 1967, which would be just a day prior to the purchase of the 75 bars in question by him, that the petitioner had purchased 2 or 3 bars of silver for the first time and had sold them in the market;
(iii) that the said 75 bars of silver were purchased by him from M/s. J. Pitambardas in Bombay on December 25, 1967;
(iv) that the petitioner has not been able to produce any entry in his books in regard to the purchase from M/s. J. Pitambardas and Co.;
(v) that the petitioner has not been able to account satisfactorily for the moneys from which he effected the said purchase;
(vi) that after removing the said 75 bars of silver in the first instance to his own godown, the petitioner sent the said 75 bars on December 28, 1967 to M/s. Reliable Roadways, which was a transport concern, for storage, pending further instructions;
(vii) that the petitioner had not obtained any receipt or voucher in respect of the said 75 bars of silver from M/s. Reliable Roadways;
(viii) that the said M/s. Reliable Roadways had not made any entry in their own books in regard to the said 75 bars of silver, or the intended transport thereof; and
(ix) that the said 75 bars of silver were seized from the godown of M/s. Reliable Roadways by the customs authorities on December 29, 1967 when the place was raided by them, and the said M/s. Reliable Roadways thereafter furnished to the customs authorities the name of the petitioner, and produced the bills of M/s. J. Pitambardas in respect of the said 75 bars of silver, which bills were made out in the name of the petitioner without mentioning his address or whereabouts.
His Lordship Mr. Justice Vimadalai observed “in my opinion the facts enumerated in the preceding paragraph, whilst they may show that the petitioner intended to deal in some improper manner with the said 75 bars of silver, are perfectly consistent with such improper dealing being within the country, and there was no evidence at all before respondent No. 1 to show that the petitioner’s acts amounted to a direct movement towards the commission of the offence in question, viz., that of exporting the said 75 bars out of the country. It was, therefore, not possible for any reasonable person to come to the conclusion, on those facts, that the said 75 bars of silver were attempted to be exported by the petitioner out of the country.” It is thus seen that inspite of the evidence regarding the purchase, sending of the goods without vouchers and storing in some other godown, still the High Court did not find it possible to hold that there was an attempt to export silver. In the present case all that the Department was able to establish was that 101 slabs of silver were found hidden in the wadi belonging to appellant B.K. Patel. Even that is accepted as true, it would not be sufficient to hold that there was an attempted export of silver by B.K. Patel. It was quite possible B.K. Patel might have allowed his wadi being used for storage of silver by someone who wanted to export. The Department did not secure any evidence to establish whether B.K. Patel had resources to acquire 101 slabs of silver. As stated earlier, there was no evidence also as to wherefrom these silver bars were brought to the wadi. In the circumstances the Collector’s finding both regarding transport without voucher and attempted to export silver by the appellant appears not based on any satisfactory evidence. The Board did not give any other reason to uphold the finding of the Collector. On the other hand, the Board’s observation was “the evidence disclosed in the orders appealed against, clearly establish the interest of the appellant, which also establishes beyond any reasonable doubt that the silver in question had been concealed underground only with the objective of its unauthorised export”. So the finding is not that there was an attempted export but it was concealed with the object of unauthorised export. An offence of violation which is penalised under law is not concealing but an attempt to export and therefore no penalty could have been imposed on the appellant B.K. Patel. In that view of the matter the imposition of personal penalty on the appellant B.K. Patel is liable to be set aside and accordingly the same is set aside.
10. As regards the appellant J.L. Sharma is concenred the evidence consists of the driver and the cleaner. The statement of the driver was to the effect that he was instructed by the appellant to hand over the truck to the bearer of chit which bears his signature and the truck number and accordingly he handed it over to one Karimbhai who brought back the truck after loading the same with silver slabs and 62 bags of berries. Even though the customs authorities had seized the truck, arrested the driver and seized two bills, the chit stated to have given by Karimbhai to the driver was not seized. No explanation is forthcoming for the non-production of that chit. The appellant Sharma had denied having given such instructions. His statement discloses that he had even dismissed the driver later for unauthorised act. Excepting the statement of the driver which was stated to have been corroborated by the cleaner, there was no other evidence to implicate the appellant J.L. Sharma. In Criminal Appeal No. 1188 of 1978 the High Court of Gujarat set aside the conviction of the appellant J.L. Sharma. The Hon’ble High Court observed because of the prosecution did not get the chit the statement of the driver that the master had given the chit has become doubtful. The High Court has further observed that except establishing the possession and ownership of the truck there was nothing else brought out to show that the appellant Sharma was in any way involved with the transport of the silver ingots. The finding of the High Court in the Criminal Appeal appears totally justified. The most important witness who could throw light as to the carriage of 20 slabs of silver, namely, Karimbhai to whom the driver had given the truck did not implicate or stated a word against the appellant Sharma. The possibilities of the driver misusing the truck cannot be altogether ruled out. The conduct of the appellant in dismissing the driver also justifies the inference that it was the driver who had misused for the carriage of silver and his statement that he had. instructions to hand over the truck to a person who brings his chit cannot be believed particularly in the absence of the chit which should have been with the driver but was neither seized nor produced in the case. The Collector has totally relied on the driver’s statement for imposing the personal penalty on the appellant J.L. Sharma. The Board did not give any other reason to upheld the finding of the Collector. The Board has observed “there is nothing to disbelieve the driver’s statement that the truck was used at the instance of the owner. The driver had also indicated how the truck was to be made over on the basis of a chit issued by the owner to him. In the circumstances, there is sufficient justification for relying on the driver’s statement and penalising the appellant”. The Board, however, did not consider as to why the chit was not seized or not produced by the driver. When there is documentary evidence it becomes primary evidence and if such evidence is not produced the secondary evidence cannot be relied upon unless there is cogent reasons for non-production of the primary evidence. No such reason is forthcoming in the instant case. The Collector and the Board in my opinion were unjustified in relying on the uncorroborative statement of the driver for imposing the personal penalty on the appellant J.L. Sharma. Agreeing with the finding of the High Court of Gujarat and for the reasons stated already, I hold that the Collector was unjustified in imposing the personal penalty on the appellant J.L. Sharma. The Board was not correct in confirming that order. I, therefore, set aside the personal penalty on the appellant, Shri J.L. Sharma.
11. The only other aspect that remains for consideration is the confiscation of the truck. The confiscation was ordered under Section 115(2) of the Customs Act. The said provision provides for confiscation of a conveyance used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods. It is, therefore, necessary for the Department to establish that the truck in question was used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods. The allegation was that 20 slabs of silver was transported to a wadi in violation of the provisions of Sections 11K of the Customs Act. The further allegation was that there was an attempt to export silver. The truck No. MHT 2304 was admittedly used for the transport of 20 silver slabs from Panchkuva to wadi. The truck was not used from wadi to any other place. The journey between Panchkuva to wadi cannot be considered as in the course of attempted export of silver. The silver at that stage also cannot be considered as smuggled goods because there was no attempt to export at that stage. In the said circumstances it cannot be said that the truck was used as a means of transport in the smuggling of goods or in the carriage of smuggled goods. In that view of the matter the truck also cannot be ordered to be confiscated under Section 115(2). The violation of the provisions of Section 11K would only render the goods Carried in the truck liable to confiscation and not the truck itself. In its order the Board had not disclosed or given finding as to the liability of the truck to confiscation. The finding of the Collector reads “I, therefore, hold that at least underneath the 62 bags of berries at Ahmedabad as deposed by Shri Benichand G. Thakor in his statement dated 31-1-69 and transported the said silver from Ahmedabad to the said wadi. I further, hold that the said wadi is situated in the specified area and no silver bullion can be transported without the cover of a voucher as required under Section 11K of the Customs Act, 1962 in that wadi. I hold further that no voucher or and transport voucher as required under Section 11K of the Customs . Act, 1962 was held by the driver or the cleaner or by any one in this case, and the recovery of the. large quantity of 101 slabs of silver from the earth near the well situated in open wadi which is very close to the sea shore of India is a clear decisive inferential evidence that the silver seized in this case was intended in all probability to be imported to a place outside India and in furtherance of that complete plan to export huge silver, 20 slabs of silver were carried in the truck No. MHT 2304. I, therefore, hold that the said transport of silver from Ahmedabad to wadi mentioned above was done in contravention of Section 11K of the Customs Act, 1962 so as to hold that silver to be exported goods and thereby the silver seized in this i.e. 101 slabs of silver were rendered liable to confiscation under Section 113(1) of the Customs Act, 1962. Therefore, it can be held that the truck No. MHT 2304 was used as a means of transport in the smuggling of said 20 slabs of silver as per Section 2(39) read with Section 2(22) of said Act. I, therefore, hold further that the said truck MHT 2304 is liable to confiscation under Section 115(2) of the Customs Act, 1962”. From the finding of the Collector one cannot understand how he could order confiscation of the truck under Section 115(2). His finding was that there was contravention of Section 11K. For contravention of Section 11K the Customs Act did not authorise confiscation of the conveyance though it authorise confiscation of the specified goods conveyed in the conveyance. There is no clear finding by the Collector also that the truck was used as a means of transport in the smuggling or in the carriage of smuggled goods. In the circumstances and for the reasons already stated the confiscation of the truck and imposition of fine in lieu of confiscation are set aside.
12. In the result, both the appeals are allowed. The penalty imposed on both the appellants is set aside. The penalty, if paid, shall be refunded to them. The confiscation of the truck MHT 2304 and the fine in lieu of confiscation are set aside. The fine, if paid, shall be refunded to the appellant, J.L. Sharma.