{"id":95995,"date":"1986-07-18T00:00:00","date_gmt":"1986-07-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chimaji-vithoba-gadge-vs-collector-of-customs-on-18-july-1986"},"modified":"2018-07-10T12:38:17","modified_gmt":"2018-07-10T07:08:17","slug":"chimaji-vithoba-gadge-vs-collector-of-customs-on-18-july-1986","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chimaji-vithoba-gadge-vs-collector-of-customs-on-18-july-1986","title":{"rendered":"Chimaji Vithoba Gadge vs Collector Of Customs on 18 July, 1986"},"content":{"rendered":"
Customs, Excise and Gold Tribunal – Mumbai<\/div>\n
Chimaji Vithoba Gadge vs Collector Of Customs on 18 July, 1986<\/div>\n
Equivalent citations: 1986 ECR 650 Tri Mumbai, 1986 (26) ELT 255 Tri Mumbai<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 K. Gopal Hegde, Member (J) <\/p>\n
1. This appeal arises out of and is directed against the order No. VIII(b) 10(117)Cus\/85 dated 8.1.86 passed by the Addl. Collector of Customs (P), Marine & Preventive Wing, Bombay.\n<\/p>\n
2. The facts necessary for the disposal of this appeal are set out in the order of the Addl. Collector and have not been disputed. The Customs (Prev) Division, Alibag on 20.9.1985 were on their job to work out information regarding smuggling of goods of foreign origin. When they were near Kolad on Rohakolad Road they noticed a truck bearing No. MTT-3330 coming from Roha side. Suspecting the said truck, the officers gave signals to the truck to stop, but the driver ignored the signals who tried to escape from, the scene. Therefore, the officers chased the said truck and intercepted it after sometime. Since the driver could not offer any satisfactory explanation as to the purpose of his visit, the officials detained the truck and brought it to Alibag Customs Office alongwith the three occupants and then seized the truck in the reasonable belief that the said truck had contravened the provisions of Section 106 of the Customs Act and thereby became liable to confiscation under the provisions of the Customs Act. Subsequently, the statements of the driver, the owner of the vehicle and another were recorded. It appears that the interested persons waived written show cause notice. However, the Addl. Collector who held the inquiry gave an opportunity of personal hearing. During the personal hearing the driver as well as the owner appeared, both admitted of not stopping the truck, but they pleaded that not stopping the truck was not deliberate but out of fear and ignorance.\n<\/p>\n
3. The Addl. Collector after consideration of the evidence ordered confiscation of the truck under Section 115(1)(c) but allowed redemption on payment of fine of Rs.25,000\/- in lieu of confiscation. He also imposed a personal penalty of Rs. 1,000\/- on the owner and a personal penalty of Rs. 1,000\/- on the driver under Section 117 of the Customs Act. it. Being aggrieved by the order of confiscation and personal penalty of the Addl. Collector, the owner had preferred this appeal.\n<\/p>\n
5. During the hearing of this appeal, Shri Habbu the learned advocate took me through the order-in-original and particularly to the findings of the Addl. Collector. He urged that even according to the brief facts stated in the order, the Customs Officers were on the job to work out the information regarding smuggling of goods and that they stopped the vehicle on suspicion and not that they had any reasonable belief that the vehicle was used for the carriage of smuggled goods. He further urged that the Addl. Collector had not recorded a finding that the vehicle was used for the carriage of the contraband goods. On the other hand he recorded that the vehicle was empty at the relevant time. Shri Habbu referred to the provisions of Section 115(1)(c) as well as Section 106 of the Customs Act and contended that the order passed by the Addl. Collector is illegal and not sustainable in law. He urged none of the persons whose statements were recorded, stated anything about the truck being used for the carriage of the contraband goods. He also contended that the imposition of the personal penalty on the owner is not at all sustainable and the reasons assigned by the Addl. Collector are wholly irrelevant to impose the penalty. He, therefore, prayed that the order of confiscation of the truck may be set aside, and so also the personal penalty.\n<\/p>\n
6. Shri Senthivel appearing for the Collector submitted that the Customs Act nowhere lays down that the Customs Officers should be in uniform in order to stop a vehicle. He further urged that in spite of continuous signalling by the Customs Officers the driver did not stop the truck. Therefore, the conduct of the driver assumes importance. He further stated that even after the truck was stopped some of the persons inside the truck made their escape. This also proved that the truck was being used for the carriage of contraband goods. He urged that the Addl. Collector in the circumstances of the case was justified in ordering confiscation and imposing personal penalty.\n<\/p>\n
7. I have carefully considered the submissions made on both the sides and perused the records of the case. From the findings of the Addl. Collector it is seen that the order of confiscation of the truck was made solely because the driver of the truck did not stop when signalled by the Customs Officers to stop. This is clear from his following observations –\n<\/p>\n
  “As regards the truck under seizure, I find that from the panchanama and the submissions of occupants and others that the said truck did not stop despite proper and continuous signalling by the Customs Officers. I find that the driver and the owner of the truck had also admitted this position…. With this act and conduct of not stopping truck and fleeig on approach of Customs Officers establishes the malafides of the purpose for which the truck was brought in the area. In any case once it is established that the truck did not stop on being signalled by the Customs Officers, its liability to confiscation under Section 115(1)(c) of the Customs Act is established and held”.\n<\/p>\n
Now it is for my consideration whether the Addl. Collector’s interpretation of Section 115(1)(c) is correct.\n<\/p>\n
8. Confiscation of conveyances is provided in Section 115 of the Customs Act. It reads “the following conveyances shall be liable to confiscation:\n<\/p>\n
(a)…\n<\/p>\n
(b)…\n<\/p>\n
(c) any conveyance which having been required to stop or land under Section 106 fails to do so, except for good and sufficient cause;”\n<\/p>\n
Thus it is clear that the conveyance that would become liable to confiscation is that which was required to stop under Section 106 but had failed to stop.\n<\/p>\n
9. Section 106 empowers the proper officer of the Customs to stop and search conveyance. It reads “Where the proper officer has reason to believe that any aircraft, vehicle or animal in India or any vessel in India or within the Indian customs waters has been, is being, or is about to be used in the smuggling of any goods or in the carriage of any goods which have been smuggled, he may at any time stop any such vehicle, animal or vessel or in the case of an aircraft, compel it to land, and..”\n<\/p>\n
The plain reading of this section makes it clear that it is only when the proper officer has reason to believe that a vehicle has been, is being, or is about to be used in the smuggling of any goods or in the carriage of any goods which have been smuggled, he is empowered to stop such vehicles and not otherwise.\n<\/p>\n
10. While narrating the facts the Addl. Collector had stated that the Vehicle was stopped on suspicion. Therefore, the stopping of the vehicle cannot be considered in exercise of power conferred under Section 106. Section 106 authorises the officer to stop a vehicle only if he has reason to believe that the vehicle has been, is being, or is about to be used in the smuggling of any goods or in the carriage of any goods which have been smuggled. Therefore, the stopping of a vehicle itself was illegal and if the driver had ignored the illegal stopping of a vehicle it cannot be said that he had committed any offence or that the truck became liable for confiscation under Section 115 (1) (c) of the Customs Act.\n<\/p>\n
11. The above apart, in order to confiscate a vehicle under Section 115 (1) (c) the department has to establish that the vehicle was used in smuggling of any goods or in the carriage of any goods which had been smuggled. It is true that if the vehicle had been used in the past in the smuggling of any goods or in the carriage of any goods which had been smuggled then also the proper officer of the Customs gets power to stop such a vehicle if the other condition regarding reason to believe was there. There is not even an allegation that the vehicle in question was or being or about to be used in the smuggling of any goods or in the carriage of any goods which had been smuggled. In the said circumstances, the vehicle did not become liable for confiscation. In the whole of his order the Addl. Collector nowhere stated that this truck was used in the smuggling or in the carriage of any smuggled goods.\n<\/p>\n
12. In order to confiscate a vehicle under Section 115 (1) (c) both the ingredients of Section 106 shall have to be established viz. an fficer had reason to believe that the vehicle has been, is being, or is about to be used in the smuggling of any goods or in the carriage of any goods which have been smuggled, and that the driver did not stop even in spite of signalling to stop the vehicle. Mere not stopping of the vehicle by itself would not be sufficient to order confiscation under Section 115 (1) (c).\n<\/p>\n
13. Having regard to the above finding the subsequent conduct of the driver or the persons inside the truck would not be relevant. Their conduct would not be sufficient to order confiscation of the truck. The finding of the Addl. Collector was that the truck had definitely visited the area for lifting, loading and transportation of the contraband goods but for the reasons best known to the persons concerned, was returning empty and it was for this reason that the truck was not stopped despite signalling by the Customs Officers. The Addl. Collector did not record a finding that the truck was used or is being used or about to be used for the carriage of contraband goods. In the absence of such a finding he gets no jurisdiction to order confiscation of the truck under Section 115 (1) (c) of the Customs Act. The order of confiscation made by the Addl. Collector on the facts and circumstances of the case is illegal, and, therefore, liable to be set aside and accordingly the same is set aside.\n<\/p>\n
14. As regards the personal penalty on the owner of the truck, the finding of the Addl. Collector is – “I find from the evidence on record that it was with his full knowledge and connivance that the truck was to be used for transportation of contraband. It is quite possible that out of the five persons, two who escaped apprehension by the Customs Officers, one could have been the owner i.e. Chimaji Ghadge himself”. The personal penalty was imposed under Section 117 of the Customs Act. In his order the Colelctor did not state which provision of the Customs Act was violated by the owner of the vehicle. Therefore, the penalty levied on the owner of the vehicle is without jurisdiction and the same is set aside.\n<\/p>\n
15. In the result this appeal is allowed. The order of confiscation of vehicle and imposition of the personal penalty of Rs.1,000\/- on the appellant are set aside. The vehicle shall be released to the owner and the penalty if paid shall be refunded to him.<\/p>\n","protected":false},"excerpt":{"rendered":"
Customs, Excise and Gold Tribunal – Mumbai Chimaji Vithoba Gadge vs Collector Of Customs on 18 July, 1986 Equivalent citations: 1986 ECR 650 Tri Mumbai, 1986 (26) ELT 255 Tri Mumbai ORDER K. Gopal Hegde, Member (J) 1. This appeal arises out of and is directed against the order No. VIII(b) 10(117)Cus\/85 dated 8.1.86 passed […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-95995","post","type-post","status-publish","format-standard","hentry","category-judgements"],"yoast_head":"\nChimaji Vithoba Gadge vs Collector Of Customs on 18 July, 1986 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/chimaji-vithoba-gadge-vs-collector-of-customs-on-18-july-1986\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Chimaji Vithoba Gadge vs Collector Of Customs on 18 July, 1986 - 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