AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2016 (1) TMI 836
X X X X Extracts X X X X
X X X X Extracts X X X X
....anders wood alongwith plaster of Paris. That the entire quantity of Red sanders wood and Plaster of Paris were confiscated under Sec-111 & Sec 119 of the Customs Act 1962 and no claimant of these goods came forward. That both his clients had no knowledge of the contrabond nature of goods or that these goods were meant for export out of India. Learned Advocate relied upon the following case laws to argue that neither the vehicles are liable to confiscation nor his clients can be visited with Sec 114 penalty:- (i) Prasanta Sarkar Vs CC (Prev) Mumbai [2007 (209) ELT (Tri-Mumbai)] (ii) Orient Enterprises, New Delhi Vs CC Cochin [1985 (08)LCX 0031)] 2.1It is also the case of the advocate of the appellants that appellants were never called upon to show cause as to why their vehicles should not be confiscated. 3. Sh. S.K. Naskar AC (AR) appearing on behalf of the Revenue argued that proposals to confiscate vehicles under Sec 115 of the Customs Act 1962 have been clearly spelt out in Par-14 of the show cause notice dt 21/22-12-2010. It was strongly argued by the Learned AR that both the drivers of the seized vehicles have clearly brought out the role of the appellants and appellants ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o Siliguri and if the goods could be delivered safely a tip of Rs. 15,000.00 could be earned and he would also give him some more tip. Shri Daimary further told him that all those Sanders Wood were illicitly procured and would be transported from Jaipur (Rajasthan) and unloaded somewhere around Silliguri and from there those would be smuggled out to Nepal via Naxalbari. Shri Daimary further told him that to avoid detection en route, POP Cement (Plaster of Paris Cement) would be loaded over the Sanders Wood by the party (consignor) and transport challan/ documents of P.O.P. Cement would be provided so that, if there be any checking en route, he should talk about the P.O.P Cement powder only. Initially he got afraid but out of greed of money he consented to the offer. v) As per instruction of the owner of the vehicle, he left Bongaigaon on 20.06.2010 and went to Kanpur with a load of Coal from Bongaigaon and unloaded the coal at Kanpur on 25.06.2010 and from there he went to Jaipur Transport Nagar, Jaipur and parked his empty vehicle, as his vehicle owner told him that some persons of the party (consignee) would take the empty vehicle from there and after loading the impugned goods....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rriage of any smuggled goods shall be liable to confiscation, unless the owner of the conveyance or animal proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance or animal:- 6. Both the drivers were acting as the agents of the appellants which is also confirmed by the statements of both the drivers recorded on 30/6/2010. It can not be comprehended that in the present day era of mobile phones appellants were not keeping a track of the movements of their drivers and vehicles. None of them approached the investigation immediately on coming to know that their vehicles have been seized but kept waiting till they were reached by investigation. In the existing factual matrix it has to be held that both the vehicles were used for clandestine activity with the knowledge & consent of the appellants and the same were correctly confiscated by the Adjudicating authority. There is also no merit in the argument of the appellants that no show cause notice was issued to the appellants before confiscation of their vehicles because a specific mention of the same is made in the show cause notice issued to the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s a fundamental rule relating to proof in all criminal proceedings, where there is no statutory provision to the contrary. The court further held that one of the kindred principles is that the prosecution or department is not required to prove its case with mathematical precision to a demonstrable degree, for in all human affairs absolute certainty is a myth. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. With regard to smuggling the Supreme Court held that smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. If he fails to establish or explain those facts, an adverse inference of facts may arise against him. The relevant discussion is as under : "30. It cannot be disputed that in proceedings for imposing penalties under Clause (8) of Section 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....umptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person and in the result prove him guilty. As pointed out by Best in Law of Evidence (12th Edn. Article 320, page 291), the "presumption of innocence is, no doubt presumption juris: but every days practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property," though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice." (Emphasis supplied.) The court further held that so long as the Collectors appreciation of the circumstantial evidence before him was not illegal, perverse or devoid of common sense or contrary to rules of....