JUDGMENT
Archana Wadhwa
1. The appellant has made a prayer of decision of merits. Accordingly, I have heard the leaned J.D.R., Shri A.K. Mondal for the Revenue and have gone through the impugned Order.
2. The appellant is aggrieved with the confiscation of his truck and imposition of personal penalty of Rs. 5,000.00 (Rupees five thousand) upon him. The appellant is the driver-cum-owner of the truck which was intercepted by the Customs Officers and was found to be loaded with ball bearings of foreign origin. For imposing the penalty upon the appellant, the Commissioner has observed that the goods were loaded in the truck with the full knowledge of the appellant; that he was to get the excess money over the normal fare of Delhi; that he was arrested; that he did not submit any defence-reply; that the khalasi of the truck also deposed that the goods were loaded in the truck with the knowledge of the appellant.
3. Further, I find that whereas it may be a fact that the goods were loaded in the said truck with the knowledge of the appellant who is the driver-cum-owner of the truck, there is nothing on record to show that the appellant knew that the ball-bearings being loaded in his truck, were of tainted character. Ball-bearing is an OGL item and is non-notified under the provisions of section 123 of the Customs Act, 1962. The same are being imported into Indian freely. There is no evidence on record to reflect upon the knowledge of the appellant in support of the Department’s findings as regards the contraband character of the ball-bearings. As such, it cannot be said that merely because the goods were loaded in the truck with the knowledge of the appellant, he was also aware of the fact that the same are illegally smuggled into India. It is not possible for the driver of the trucks to satisfy himself, before loading the goods, about the legal character of the same. I also find that the observations made by the adjudicating authority that he was to get the excess money over the normal fare of Delhi, are not based upon any evidence on record. There is no statement of the appellant or any other person to that effect. The fare settled with the appellant, was only Rs. 5,000.00(Rupees five thousand). As such, the same cannot be said to be on the higher side. Accordingly, I do not find any justification for imposition of penalty upon the appellant.
4. As regards the confiscation of the truck, I find that in view of my observation, the driver-cum-owner was not having any knowledge of the ball-bearings being contraband items, and the truck cannot be confiscated under the provisions of Section 115(2) of the Customs Act, 1962. Accordingly, I set aside the confiscation of the truck as also the imposition of penalty upon the appellant and allow his appeal with consequential reliefs to him. Stay petition also stands disposed of.
(Pronounced)