No Opportunity to Petitioner to prove that Car was used without knowledge for alleged Offence: Calcutta HC partially quashes Confiscation Order

The Calcutta High Court has recently quashed an order for confiscation passed by the customs authorities partially by finding that the petitioner was not provided with an opportunity to prove that for alleged offence her car in question was used without her knowledge.

The petitioner has challenged the impugned order of adjudication dated 11th July, 2016 only on account of imposition of penalty confiscating the car in question which belongs to the petitioner under Section 115(2) of the Customs Act without giving any opportunity of hearing or without providing any scope to prove that the car in question was used without the knowledge and connivance of the owner/petitioner.

Justice Md Nizamuddin observed that Mr. Ganguly, advocate appearing for the respondent Customs Authority could not satisfy this Court from record or any specific instruction based on any material on record that in the instant case compliance of formalities under Section 115(2) was made in the case of the petitioner by providing the petitioner scope to prove that for alleged offence her car in question was used without her knowledge or without any connivance on her part.

As per the provisions of section 115 of the Customs Act, any conveyance or animal used as a means of transport in the smuggling of any goods or in the carriage 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. Provided that where any such conveyance is used for the carriage of goods or passengers for hire, the owner of any conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine not exceeding the market-price of the goods which are sought to be smuggled or the smuggled goods, as the case may be.

While partially setting aside the order, the Court observed that “Considering the submissions of the parties the impugned adjudication order dated 11th July, 2016 is partially set aside to the extent of the part of the order confiscating the car in question of the petitioner and remanding the matter back to the adjudicating authority on this limited issue as appears in serial no. 2 of the adjudication order of punishment and to pass a fresh adjudication order in accordance with law after giving opportunity of hearing to the petitioner or her authorised representative within eight weeks from the date of communication of this order.”

“It is recorded that this partial setting aside of the impugned order to the extent made above is without going into the merit of the case and it has been set aside only on the ground of violation of principles of natural justice and non-compliance of formalities under Section 115(2) of the Customs Act,” the Court added.

GAYATRI DAS vs COMMISSIONER OF CUSTOMS (PREVENTIVE) & ANR.

CITATION: 2022 TAXSCAN (HC) 151

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