bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CUSTOMS APPEAL NO.28 OF 2006 The Commissioner of Customs (Import) ..Appellant Vs. Mushtaq Choudhary & Anr. ..Respondents Mr.P.S.Jately for appellant. None for respondents. CORAM :- V.C.DAGA & K.K.TATED,JJ. DATE : 6TH APRIL,2010 P.C. 1. Heard learned Counsel for the appellant. None for the respondents. 2. This appeal was admitted by an order dated 8th June,2006 to consider the following substantial question of law: "Whether on the circumstances of the case the Hon’ble CESTAT was correct in setting aside the confiscation of Mercedes car Model No. C 200 CDI bearing Registration No.HR-26-N-4857 seized from the possession of Shri Mushtaq Choudhary vide Panchanama dated 2.7.2003 under section 115 (2) and 121 of the Customs Act, 1962?" 3. The Tribunal, while considering the aforesaid question has recorded findings reading as under: 4. A conveyance is liable to confiscation under Section 115(2) of the Customs Act if it is used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods. There is no material on record to show that the impugned car has been used by either of the Appellants as a means of transport in the smuggling of an goods or in the carriage of any smuggled goods. The Department had only recovered certain documents which were meant to be used for forging the names and other particulars in the forged licenses in the names of non-existing/bogus parties. The finding of such documents can not amount to use of car in the smuggling of any goods or in carriage of an smuggled goods. There is no merit in the submissions of the learned S.D.R. that ultimately the documents recovered from car would have led to import of goods duty free on the strength of forged DEPB Licences which amounts to smuggling of goods in terms of Section 2(39) of the Customs Act. It is not disputed by Revenue that the impugned car as such has not been used in the carriage of any smuggled goods. Mere finding of documents in car which may lead to smuggling of goods is not covered by the specific wording of Section 115(2) of the Customs Act. Therefore, the provisions of Section 115(2) of the Act are not applicable for confiscating the car. 5. Section 121 of the Customs Act provides for confiscation of sale proceeds of smuggled goods. The case of Revenue is that the Appellant No.1 had received money as part of the proceeds of the forged DEPB Licenses and Release Advices and the money so received has been used by him for purchasing the car in question. It is not the case of the Revenue that car was given to the Appellant No.1 as consideration for sale of the smuggled goods. 4. Having gone through the aforesaid finding recorded by the Tribunal, the Tribunal has recorded finding of fact that the car was never used for smuggling of goods or for carrying any goods. This finding of fact recorded by the Tribunal cannot be said to be perverse. The same is based on appreciation of evidence available on record. So far as the applicability of Section 210 is concerned, the view taken by the Tribunal cannot be faulted. No material is produced on record to show that the car was purchased from and out of sale proceeds of the smuggled goods. Even the finding of fact recorded in this behalf cannot be said to be perverse. There is no substance in the appeal. The impugned order, as such, is liable to be confirmed. The question is, thus, answered in favour of the respondents and against the Revenue. The appeal stands disposed of in terms of this order with no order as to costs. (K.K.TATED,J.) (V.C.DAGA,J.)