ORDER
P.K. Desai, Member (J)
1. Though adjournment is asked for by the appellants, considering the facts and circumstances by not granting the adjournment, the matter is taken up for hearing.
2. A truck containing contraband goods was intercepted. On detailed search thereof, it was found that the truck was loaded with soda ash bags consigned to the present appellant and underneath thereof some packages containing contraband goods were found. The soda ash bags have been ordered confiscation under Section 119 of the Customs Act on the allegation that they were used for the purpose of concealing contraband goods.
3. Shri S.V. Singh, the ld. JDR submits that the very fact that contraband goods were found to have been concealed under the soda ash bags, the bags became liable to confiscation under the said provision as an article used for concealment of the contraband goods.
4. There is no denial to the fact that the gunny bags and the packages containing contraband goods were separate and the contraband were not concealed in these bags containing soda ash. The only thing was that in the truck both items were loaded where packages containing contraband articles were kept at the bottom and were “covered” by the said soda ash bags. For the purpose of attracting the provision of Section 119 of the Customs Act, 1962, there should be the articles that should have been used for the purpose of concealment of the smuggled goods. At the best the smuggled items in the truck were “covered” by the soda ash bags. The words “concealment” and “covering” have to be distinguished, when it comes to implementation of the provision of Section 119 of the Act and merely because they have been used for covering, the provision of Section 119 cannot stand attracted. There is no nexus established between the owners of the soda ash bags and owners of the smuggled goods. There is also no allegation that the appellants had directly or indirectly acquiesced to carry contraband goods in the truck, which was hired by them for transporting soda ash bags. From all these angles the approach of the authority below in invoking the provisions Section 119 of the Customs Act in relation to the soda ash bags does not appear to be correct. The order of confiscation in relation thereto cannot be sustained and is set aside. Appeal is allowed.