2005 (11) TMI 330

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....was carrying contraband goods. On further investigation, show cause notices were issued to many persons and current appellant, being one of them. The appellant before me was asked to show cause as to why penalty should not be imposed upon him under Section 112 of the Customs Act, 1962 being de facto owner of the vehicle which was used for transporting contraband. On adjudication, the adjudicating authority imposed a penalty of Rs. 15,000/- on the appellant. On appeal, the Commissioner (Appeals) after considering the facts and circumstances of the case had reduced the penalty from Rs. 15,000/- to Rs. 5,000/-. This appeal is filed against the imposition of penalty itself. 3. Learned Advocate appearing for the appellant submits that th....

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.... both sides and perused the record. I find that the penalty imposed on the appellant is under Section 112 of the Customs Act, 1962. In order to appreciate the correct position, the provisions of Section 112(a) and (b) are reproduced below : "Section 112. Penalty for improper importation of goods, etc. - Any person - (a)     who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under Section 111, or abets the doing or omission of such an act, or (b)     who acquires possession of or is in any concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in way other manner dealin....

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....lone, the appellant cannot be exonerated from the allegation particularly based on the statement Shri Iliyas Miyan, the driver of the vehicle which is a substantive piece of evidence." I find that the Commissioner (Appeals) has mis-directed himself in this regard inasmuch as once it is admitted that there are every chances that the appellant may not be de facto owner of the vehicle but somebody else may be the out come may be different. On the face of it, the appellant cannot be penalized under Section 112(a) and (b) about the ownership of the vehicle. Further, I find that the statement of the driver Shri Iliyas Miyan cannot be a substantive piece of evidence as he was one of the co-accused in the case and penalty has been imposed on him. I....