IN THE HIGH COURT OF JUDICATURE AT PATNA TAX No.39 of 2002 COMMISSIONER,CUSTOMS DEPARTMENT, Govt. of India, 5th Floor, C.R.Building, Birchand Patel Path, P.S. Kotwali, district Patna---Applicant Versus SMT. SHEELA DUBEY,W/o Sri Ravindra Nath Dubey, vill. Mahopar, P.O. Kauri Ram, P.S. Bansagaon, Gorakhpur---------------- -------------Respondent ----------- 6. 21.10.2008 In this application under Section 130A of the Customs Act the Commissioner of Customs had prayed to direct the Customs, Excise and Gold (Control) Appellate Tribunal, Eastern Bench, Calcutta (hereinafter referred to as the Tribunal) to refer the following question of law for our determination : “Whether the Appellate Tribunal has not grossly erred in allowing the appeal preferred by the respondent by way of setting aside the confiscation of the truck of respondent whereas the respondent who was owner of the truck in question failed to prove that the said truck was used without his knowledge or connivance or knowledge or connivance of his agent or the person incharge of the vehicle in question which is evident from para 4 at page 2 and 3 of the order of the appellate Tribunal ? Whether in terms of section 115(2) of the Customs Act was it not mandatory on the part of Appellate Tribunal to consider the stand of the department that the truck of respondent was seized and confiscated on the specific ground that the same was used for attempt to illegal proposed export of articles/materials and the respondent failed to prove 2 that the same was used without his knowledge or connivance or knowledge of his agent or the person incharge of the vehicle in question whereas para 4 of the order of Appellate Tribunal is relevant to demonstrate the stand of applicant herein ? Whether in a case where the seized articles/materials were legally confiscated without interference with the order of confiscation relating to the seized articles/materials the Appellate Tribunal has not erred in setting aside the order of confiscation of truck in question that too without being proved by the truck owner on any cogent ground that his vehicle was used without his knowledge or connivance or knowledge of his agent or the person incharge of the vehicle in question which is relevant from para 4 at page 2 and 3 of the order of Appellate Tribunal ? Whether in any view of the matter the appellate order is sustainable in the eye of law ? Short facts giving rise to the present application are that Sheela Dubey, respondent herein, is the owner of the truck bearing registration no. UP-33-0435. The said truck was hired by M/s Sangam Road Transport Company, Kanpur, for transporting masoor dal from Kanpur to the godown of M/s Rani Satti Galla Bhandar at Raxaul. Before the truck reached its destination it was intercepted by the Customs Officials at Raxaul and a show cause notice was given to her as to why the aforesaid truck be not confiscated 3 in terms of Section 115 of the Customs Act. She submitted her show cause and contended that in normal course of transport business the truck was hired for transport of masoor dal from Kanpur to Raxaul and the truck having been intercepted even before it reached its destination, it cannot be said that the truck was used as a means of transport in the smuggling of any goods. Show cause filed by her did not find favour with the Commissioner of Customs and it held that the truck in question is liable for confiscation under Section 115 of the Customs Act. Aggrieved by the same the owner filed appeal before the Tribunal. The Tribunal on consideration of the materials came to the conclusion that in absence of any finding by the Commissioner that owner had knowledge that the truck shall be used for smuggling of the goods, confiscation of the truck is not justified. Accordingly it set aside the order of confiscation. Mr.Rakesh Kr.Singh appearing on behalf of the petitioner submits that the truck being involved in the smuggling of goods to Nepal it was rightly confiscated. 4 We do not find any substance in the submission of Mr.Singh. The truck was hired for transporting masoor dal from Kanpur to Raxaul. Even before it reached Raxaul it was intercepted by the Customs Officials. There is no material excepting the ipse-dixit of the Customs authority on record to show that the dal, in question, was intended to be a smuggled to Nepal. In that view of the matter, we are of the opinion that the condition precedent for confiscation of the vehicle as provided under Section 115 of the Customs Act is not satisfied. Once it is held so, the Tribunal did not err in setting aside the order of confiscation. We are of the opinion that no referable question of law arises from the order of the Tribunal and the application filed by the petitioner is absolutely misconceived. It is dismissed accordingly. (C.K.Prasad,J.) (S.C.Jha,J.) spal/