1. The Revision Application filed before the Government of India against the Order bearing No. 203/80 dated 17th March, 1980 passed by the Central Board of Excise and Customs statutorily stood transferred to the Tribunal for being heard as an appeal.
2. The facts necessary for the disposal of this appeal are not in dispute. The appellant's vessel bearing registration No. P.L.G.-684 was ordered to be confiscated by the Additional Collector but the appellant was given option to redeem the same on payment of fine of Rs. 50,000/- in lieu of confiscation. Feeling aggrieved, the appellants preferred an appeal before the Board and the Board while confirming the confiscation reduced the fine from Rs. 50,000/- to Rs. 35,000/-. As the appellant was dissatisfied with the order of the Board he preferred a Revision Application.
3. During the hearing of this appeal, Shri J.B. Raichandani advocate for the appellant submitted that the order of confiscation was made in the year 1974. The redemption fine imposed at that time was Rs. 50,000/-. The appellant could not redeem as the value of the vessel was much less than the redemption fine. He further submitted that the value of the vessel when it was built was only Rs. 34.000/- and at the time of seizure it was Rs. 30,000/-. Ten long years have elapsed and the present value would not be more than Rs. 10.000/-. He further submitted that the Learned Member of the Board having held that the Department had not rebutted the value stated by the appellant unjustifiably imposed a fine of Rs. 35,000/-. Shri Raichandani further submitted that the appellant had been exonerated under Section 112 of the Customs Act.
The confiscation was ordered because the tindel had used the vessel for the transport of the smuggled goods. Shri Raichandani submitted that there could be considerable reduction in the amount of fine.
4. Shri C.M. Gidwani, Learned Departmental Representative submitted that the market value of the vessel at the time of seizure was Rs. 1 Lakh. Taking that value into consideration, the Additional Collector had fixed the redemption fine. Shri Gidwani further submitted that according to the appellant the value was Rs. 34,000/- for the body, engine and gear box but then the appellants have not taken into consideration the cost of labour and other minor inputs. If they are taken into consideration, the value cannot be less than Rs. 75,000/-.
Even if depreciation of 15 % is allowed the payment of fine imposed by the Additional Collector cannot be considered as unjust. Shri Gidwani further submitted that the vessel was sold on 29-9-1980 in Public Auction for Rs. 30,000/-. Therefore, the present contention of the appellant that its market value is only Rs. 10,000/- has no basis.
5. In reply, Shri Raichandani submitted that the value given by the appellant was inclusive of the labour and other inputs. He further submitted that the appellant had no information that the vessel was sold. He also submitted that the Customs cannot sell the vessel if an appeal is pending.
6. Considered the submissions made on both sides. The contention of Shri Raichandani that vessel could not be sold by the Customs because of the pendency of the appeal appears untenable. Shri Raichandani was unable to point out any provision of law which precludes or prohibits the Customs from selling the vessel which was ordered to be confiscated during the pendency of the appeal. It is not the case of Shri Raichandani that there had been an order of stay by a proper authority and that the Customs had ignored the stay order and sold the vessel in public auction.
7. The very fact that the vessel fetched Rs. 30,000/- in a public auction held in the year 1980 disproves the contention of Shri Raichandani that the market value cannot exceed Rs. 10.000/-.
8. The confiscation had been ordered under Section 115(2) of the Customs Act. The appellant had been exonerated under Section 112 in that no personal penalty had been imposed on him. The records do not disclose that this vessel was previously used in the carriage or the transportation of the smuggled goods. Shri Raichandani submitted that the vessel was being used as a carriage for goods on hire.
9. The learned Member of the Board had observed that the department did not rebut the cost incurred by the appellant. The cost incurred according to the appellant was Rs. 34,000/-. The above observation of the Board implies tacit acceptance of the cost of the conveyance and therefore, the Board was unjustified in imposing a fine of Rs. 35,000/-. The fine that may be imposed in lieu of confiscation on the owner of a conveyance of the category mentioned in the proviso to Sub-section (2) of Section 115 of the Customs Act, 1962 should not be confiscatory in nature, particularly when no personal penalty was imposed on the owner and in the absence of evidence that the conveyance was being repeatedly used as a means of transport in the smuggling of any goods or in the carriage of smuggled goods.
10. Taking all aspects into consideration, while upholding the confiscation, I reduce the fine amount in lieu of confiscation from Rs. 35,000/- to Rs. 20.000/-. Subject to the above modification in the amount of fine, this appeal fails and the same is rejected.