In the case of Confiscation of Truck for Transporting Red Sander Wood, the Kolkata bench of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) directed to refund security deposit to successor on death of proprietor of himalayan roadways.
Shri Ishwar Chand Gupta was the proprietor of M/s Himalyan Roadways India located at New Delhi. Truck No. NA 3KHA 6351 belonging to Himalayan Roadways was intercepted by Nepali Customs authorities. It was detected that 797.5 Kg of prohibited Red sanders wood was being transported in a concealed manner.
After due process, the Adjudicating Authority held that truck carrying the goods were liable for confiscation under Section 115 of the Customs Act, 1962. He also imposed penalty on the Appellant.
There are two seizures, one at Nepal by Nepal Customs and other by Indian Customs. As far as seizure at Nepal Custom is concerned, there is nothing on record to suggect about the same as no documents have been relied on by the department or produced during hearing to prove that seizure.
Adjudicator has mainly punished the Father-Son duo on that basis when he reasoned that both have played their role in sending he consignment of Red Sanders Wood illegally to Nepal. It is also on record that it was father-Sonduo who provided the addresses of person/firm which booked the prohibited consignment on their own efforts to provetheir bona-fide but the department could not conduct follow up at those address even today as is clear from impugned order itself.
The Adjudicator has done is that anyone whose name appears or are concerned with the truck & Consignment in question have imposed penalties but what the investigation has not done is to prove their malafide or mens-rea in any way. This is one of the case where follow up investigation has not been done properly to say the least.
The Transporter namely Shri Rajeshwar Kalwar has also contented correctly that vehicle under Section 115 of Customs Act can only be seized if there are cavities etc. in the truck itself or the owner of Driver has the knowledge of illegal activities, but I find that there is no such thing proved by the Department.
The appellant stated that his goods valued at Rs.20,12,150/- were provisionally released against the Security Deposit of Rs. 2 lakhs made by him. Since the Commissioner (Appeals) has fully set aside the OIO and has held that no penalty and confiscation of truck are warranted and set aside the same, the Appellant is required to get back the security deposit of Rs. 2 Lakhs paid by him when the goods were provisionally released.
Mr. Dinesh Gupta, son of the Appellant (Shri Iswar Chand Gupta), has filed a letter along with Death Certificate of Shri Ishwar Chand Gupta on 4th April 2015 stating that Shri Ishwar Chand Gupta has expired on 14/02/2015. It is seen from the records that on 16/04/2015, Mr. Dinesh Gupta has filed the application as successor of Shri Iswar Chand Gupta and has also cured the defects pointed out by the Registry.
A two member bench comprising Mr. R. Muralidhar, Member (Judicial) and Mr. Rajeev Tandon, Member (Technical) held that “the Department cannot retain this amount. The Appellant’s successor would be eligible to get the refund of security deposit of Rs. 2 Lakhs. While we hold that the Appellant’s successor is eligible to get the refund of Security deposit, it is for the Adjudicating Authority to cause necessary verification in respect of the claim of the Sri Dinesh Gupta that he is the relevant successor.”
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