ORDER
P.G.Chacko, J.
1. The officers of Customs intercepted a truck-load of 90 goats at Udhaopur in the night of 12/13 September 1990 in the presence of two witnesses. That place was within Indian territory, a few kilometres away from Indo-Nepal border. There were six persons in the truck including its driver. After Panchnama proceedings on the spot, the officers took the truck carrying the goats and the men to the Customs office at Bahraich and, on 13.9.90, they recorded statements of the six men. Some of those men named Shri Chinna Chikwa (appellant in appeal No.C/552/93) as owner of the goats while others mentioned the name of Shri Iqbal Ahmed (appellant in appeal No.C/594/93) as owner of the truck. On the basis of the statements, the officers believed that the goats were being illegally exported to Nepal offending Section 11 of the Customs Act and hence the animals and vehicle were liable to confiscation. Therefore, they seized the goats and truck under Section 110 of the Customs Act. Later, a show-cause notice was issued to the appellants alleging illicit exportation of the goats and proposing confiscation of the goats and truck respectively under Section 113 and 115 of the Customs Act and also proposing imposition of penalties under Section 114 of the Act. Both the appellants replied to the SCN, denying the allegations. The Additional Collector, who adjudicated the matter, confiscated the goats and forfeited to Central government the amount of Rs.20,000/- already realised as proceeds of auction sale of the goats. He also confiscated the truck with option for redemption thereof on payment of a fine of Rs.15,000/-. the cash security amount deposited by the truck-owner at the time of provisional release of the vehicle was appropriated towards the redemption fine. The adjudicating authority also imposed penalties on the appellants under Section 114 of the Customs Act. The order of the adjudicating authority was upheld by the Collector (Appeals) in the appeals filed by the parties. Hence the appeals before the Tribunal.
2. Examined the records and heard both sides.
3. The appellants have submitted that neither any copy of Panchnama had been given to them nor were they allowed to cross-examine the Panch witnesses and officers before the order of adjudication was passed. They have further stated that the Collector (Appeals) also did not consider this grievance of theirs. Ld. Advocate for the appellants has also reiterated these grounds of the appeals and has contended that natural justice was denied to his clients. Arguing on the merits of the case, he has submitted that there is absolutely no evidence on record to show that the goats were being exported to Nepal. Ld. SDR has reiterated the findings of the authorities.
4.1 I find that there is no dispute of the fact that the Panchnamas drawn by the Customs officers were relied upon in the show-cause notice but no copy thereof was issued to the appellants. That the request of the parties for opportunity to cross-examine the Panch witnesses and the seizing officers was not granted is also not in dispute. The case of the Department appears to be almost entirely based on the statements of the occupants of the trucks. There is no documentary or other evidence on record to corroborate what the occupants stated. The order of adjudication says that no document was produced by the occupants to prove that the goats were not being exported to Nepal illicitly. But, in the present appeals, the appellants have stated that the driver had produced receipt No. 86 dated 12.9.90 to the officers on the spot, which, according to the appellants, clearly showed that the goats were being transported to the cattle fair (Pashu Mela) at Talbhagoada within Indian territory. Whether any production of such document by the driver was acknowledged by the seizing officers had to be ascertained from the Panchnama. But, undisputedly, no copy of Panchnama was given to the appellants, nor was their request for cross-examining the Panch witnesses and seizing officers acceded to by the adjudicating authority. The lower appellate authority is also silent on this vital point in its order.
4.2 Ld. JDR has sought time to obtain copies of the Panchnama and other documents relied upon in the show-cause notice, from the Departmental authorities so that he can rebut the appellants’ plea based on alleged non-production of relied-upon documents. I am not inclined to accept this prayer at this belated stage. The appeals are more than seven years old. The respondents have not shown any interest in prosecuting the matter hitherto in the manner ld. SDR has now proposed to do. In the circumstances, I am inclined to dispose of the appeals on the basis of the available records and the submissions made before me.
4.3. Any show-cause notice proposing confiscation of goods should allege the facts necessary for supporting such a proposal. In the instant case, the only allegation in the SCN was that the goats were “meant for illicit export” to Nepal. The basis of such allegation was not supplied in the notice, except an averment that the occupants of the truck had confessed that the goats were to be exported to Nepal. There was no allegation that any of these appellants made any such confession. The case of the department as set up in the orders of the lower authorities is entirely based on the statements of the occupants of the truck to the effect that the goats had been loaded onto the truck at Chinna Chikwa’s residential premises at Bhinga for transportation upto Talbhagoada near Indo-Nepal border and Chinna Chikwa’s statement that the goats were being transported to Bhagora Bazar within Indian territory, only about 2-3 Kms. away from Indo-Nepal border. [Ld. advocate has submitted that Bhagora Bazar was in the township of Talbhagoada and was the venue of the Pashu Mela]. I further note that, on Chinna Chikwa’s plea that the goats were being taken to the Pashu Mela at Bhagora Bazar, the lower appellate authority’s finding that no big cattle fair was held at that place. Ld. Collector (Appels)’s finding on the point is that it was highly unlikely that an inexperienced person like Chinna Chikwa would attempt to sell a large number of goats in a cattle fair in his very first venture and that too when he had no business contacts at Talbhagoada. The Additional Collector found that the goats were “meant for” illegal export to Nepal. The Collector (Appels) has gone a step further and found that there was an “active attempt at” illegal export.
4.4 The question is whether there was evidence of active attempt at illegal exportation of the goats across Indo-Nepal border warranting confiscation of the animals and the truck under Section 113 and 115 of the Customs Act.
4.5 I note that the statements of the driver and other occupants of the truck were consistently to the effect that the goats were to be unloaded at Talbhagoada, about 2-3 Kms. away from Indo-Nepal border and that Chinna Chikwa’s case was no different. That there was cattle fair (Pashu Mela) at that place was also accepted by the lower authorities. The authorities, however, were not inclined to accept Chinna Chikwa’s case that he had intended to take the goats for sale at the Pashu Mela. That was solely based on Chikwa’s statement that he was going there for the first time and did not know anybody there. The lower authorities, therefore, recorded a finding that Chikwa’s attempt was a illegally export the goats to Nepal. Such a finding appears to have stemmed from a premise that Chikwa was unlikely to take them to the cattle fair. In other words, the finding of “active attempt at illegal export” is based on mere conjecture and not any evidence. The provisions of Section 113 of the Act, for confiscation of any goods attempted to be exported contrary to any statutory prohibition, would require positive evidence of an active attempt for such exportation. No such evidence is forthcoming from the record of the present case. Ld. SDR’s argument that the facts stated by the witnesses in the case indicated a preparation on the part of Chikwa for such exportation does not appeal to me. Those facts could at best be proof of a preparation for transportation of the goats upto Talbhagoada. Therefore, the aforesaid finding of the lower authorities cannot be sustained in law and, consequently, confiscation of the goats must be set aside.
4.6 It was nobody’s case that the truck was used, or intended to be used, for transporting the goats across the border. Even otherwise, where the goats were not liable to confiscation, the truck too was not so liable inasmuch as it was not used in the smuggling of any goods. Therefore, the confiscation of the truck under Section 115 of the Act is also unsustainable. Needless to say, there was no warrant for penalties under Section 114 in the absence of liability of the goats for confiscation under Section 113.
5. In view of my findings, I allow the appeals with consequential reliefs to the appellants.
(Dictated and pronounced in open Court.)