Case: Union of India and Another Vs. Mustafa and Najibai Trading Company and Others

By the said order of the Collector dated 6-4-1984, which was affirmed in appeal by the Tribunal, goods valued at Rs. 59, 53, 560 c.i.f. (Rs. 1, 78, 60, 680 at the Indian market rate) were confiscated under clauses (a) and (f) of Section 111 of the Customs Act, 1962 (hereinafter referred to as the Act). The gunny bags, white cloth wrappings, wooden cases and the cartons which were used for keeping the seized goods were also confiscated under Section 118(1) of the Act. The vessel, MANSCO-3, containing the said goods was confiscated under Section 115(2) of the Act but the owner of the vessel was given an option to redeem it on payment of fine of Rs. 7, 50, 000 within one month of the date of receipt of the said order and personal penalties were also imposed under Section 112 of the Act on Respondent 2, the Managing Director of Respondent 1-Company (the owner of the vessel) as well as on the Master of the vessel and other persons2. In September 1982, 408 packets were consigned from Dubai to Afghanistan via Karachi and were shipped to Karachi on the vessel AMETHYST. When the said vessel arrived at Karachi Port the Government of Pakistan refused clearance of the consignment and the goods remained in transit shed at Karachi Port. On 25-4-1983, the Central Board of Revenue of Pakistan allowed reshipment of the goods back to Dubai. Thereafter the vessel, MANSCO-3, was sent from Dubai to Karachi for unloading certain cargo at Karachi and to return to Dubai with the said consignment of 408 packets which had been detained at the Karachi Port. At Karachi Port, 408 packets were loaded on the vessel for the purpose of reshipment to Dubai. 971 packages of goods of Pakistani origin were also loaded on the said ship. MANSCO-3 left Karachi on 16-8-1983 but instead of proceeding to Dubai, the vessel proceeded to Bombay. MANSCO-3 reached the outer anchorage of Bombay Harbour on 20-8-1983. From the outer anchorage, the said vessel entered the inner anchorage on 21-8-1983 but was sent back to the outer anchorage on the same day. On 22-8-1983, M/s. Regent Shipping and Trading Company, the local agents of the shipping company which a owned the vessel, MANSCO-3, contacted the Captain of the ship as well as the Bombay Port Trust Pilot Station and the Bombay Port Trust Control. They were asked to deposit the piloting charges by the Bombay Port Trust authorities. On 23-8-1983, piloting charges of Rs. 12, 000 were paid to the Bombay Port Trust by the local agents and the ship was brought into the inner anchorage of Port Mazgaon on 23-8-1983 at about 12.20 p.m. On the morning of 24-8-1983, the officers of the Customs (Preventive) Wing boarded MANSCO-3 and asked the Captain of the vessel to produce the crew list, crew property list, store list and the Import General Manifest. The Captain of the vessel could not produce any of the above-referred documents. On questioning the Captain, the Customs Officers came to know that the Chief Officer and the Chief Engineer of the vessel had left the vessel in a fishing craft without completing the customs, health and immigration formalities and had gone ashore when the vessel was at the outer anchorage.Thereafter the officers inspected the holds of the vessel and found a large number of white cloth-wrapped packages bearing the markings Star Dubai, Prince Dubai, etc. They further found a large number of gunny-covered packages bearing the marking In Transit to Afghanistan via Karachi and Chamman below the white cloth-covered packages. Having regard to the markings, it appeared to the officers that the goods were meant for shipment to Afghanistan and the Captain had port clearance for Dubai from Karachi and not for Bombay. The Customs Officers also came to know that the vessel had on its own attempted to come to the inner anchorage of Bombay Harbour even before Bombay Port Trust charges were paid and without being escorted by the Port Trust Pilot and that there was a direction by the harbour pilot to go back to the outer anchorage. The 408 gunny packages bearing the markings In Transit to Afghanistan via Karachi and Chamman were found to contain VCRs, video cassettes, car cassette players, textiles, TV sets. All these packages originated from Dubai and were valued at Rs. 56, 21, 320 c.i.f. and Rs. 1, 68, 63, 960 (market value). The other packets found in the vessel contained ready-made garments, PVC pipes, footwears, aluminium utensils packed in 971 packings and were valued at Rs. 3, 32, 240 c.i.f. and Rs. 9, 96, 720 (market value) and the said goods originated from Pakistan. The Customs Officers recorded the statements of the Captain of the vessel as well as the representative of the local agents at Bombay. Since the Captain and the local agents did not take any steps to file the Import General Manifest and other documents for the purpose of voyage to Bombay, the Customs Officers seized all the 1379 packets found on board of the vessel. After completing the investigation, show-cause notices dated 31-12-1983 were issued by the Assistant Collector of Customs, R&I, Bombay. A reply dated 19-2-1984 to the said show-cause notice was submitted on behalf of M/s. Mustafa & Najibai Trading Co., Dubai, Respondent 1, the owners of MANSCO-3 and Respondent 2, the Managing Director of Respondent 1. The Captain and others sent their replies to the show-cause notice on 20-2-1984. After holding an inquiry, the a Collector passed the order dated 6-4-1984 for the confiscation of the goods that had been seized, valued at Rs. 59, 53, 560 c.i.f. and Rs. 1, 78, 60, 680 at the Indian market rate under clauses (d) and (f) of Section 111 of the Act as well as for confiscation of the gunny bags, white cloth wrappings, wooden cases and the cartons which were used for keeping the seized goods under Section 118(1) of the Act. MANSCO-3 was ordered to be confiscated under Section 115(2) of the Act but the owner of the vessel was given an option to redeem it on payment of fine of Rs. 7, 50, 000 within one month of the date of receipt of the said order. A personal penalty of Rs. 3, 00, 000 was imposed on Mustafa Najibi, Respondent 2, the Managing Director of Respondent 1, and a penalty of Rs. 2, 00, 000 was imposed on Abdul Rahim Khatri, the Master of the vessel. Personal penalties were also imposed on certain other persons, viz., Mohammed Yousuf Abdulla, M/s. Aero Maritime Ltd., Karachi, Ramesh Amritlal Shah, Abedin Ghadiali, Ramanlal P. Pandya and Dawood Sharafuddin Kaldane. Feeling aggrieved by the said order of the Collector, an appeal CD(Bom.) A No. 549 of 1984 was filed by Abdul Rahim Khatri, Master of the vessel MANSCO-3 and CD(Bom.) A No. 549 of 1984 was filed by M/s. Mustafa & Najibai Trading Co., Respondent 1 and Nuruddin Mustafa, Respondent 2, Managing Director of Respondent 1. Both these appeals were dismissed by the Tribunal by order dated 26-11-1985. Feeling aggrieved by the said order of the Tribunal, Writ Petition No. 6142 of 1986 was filed in the Bombay High Court by M/s. Mustafa & Najibai Trading Co., Respondent 1, the owners of the vessel MANSCO-3, Nuruddin Mustafa, Respondent 2, the Managing Director of Respondent 1-Company, and Mahmood Mohmed Abrahim Benzad, Respondent 3 herein, who claims to be the owner of some of the packages which had been shipped from Dubai to Karachi and which were seized from MANSCO-3 by the Customs authorities at Bombay Port and were ordered to be confiscated. The said writ petition has been allowed by the High Court by the impugned judgment. Hence this appeal

Reasoning:
10. The Collector held that the seized goods had been imported into India without an import licence and hence, in contravention of the prohibition imposed under Section 3 of the Imports and Exports (Control) Act, 1947 and clause 3 of the Imports (Control) Order, 1955 and were, therefore, liable to confiscation under Section 111(d) of the Act and that the goods were also liable to be confiscated under Section 111(f) of the Act because there was failure on the part of the Master of the vessel MANSCO-3 and the agents of the owners of the vessel at Bombay to file the Import General Manifest as required under Section 30 read with the Import Manifest Regulations within 24 hours of the arrival of the vessel in the Port of Bombay. The submission of the respondents that the goods were not meant for being unloaded in India and being same bottom cargo, they were covered by clause 11(e) of the Import (Control) Order and no import licence was required for bringing them in this country, was rejected by the Collector on the ground that under the Import Manifest Regulations, same bottom cargo or retention cargo carried on a vessel has to be listed on a separate sheet in the Import Manifest which has to be delivered in the manner laid down in Section 30 of the Act within 24 hours of the arrival of the vessel in any customs port in India and that no Import Manifest indicating the goods as same bottom cargo was delivered under Section 30 of the Act. In the absence of an Import Manifest listing the goods as same bottom cargo, the said goods, which had crossed the territorial waters of India, had to be treated as having been imported into India in view of the definition of import contained in Section 2(23) of the Act and, therefore, they were liable to be confiscated under Section 111(d) of the Act since there was no import licence authorising their import20. Shri Usgaocar has assailed the said view of the High Court and has urged that in interfering with the findings of fact recorded by the Collector as well as the Tribunal, the High Court has exceeded the jurisdiction vested in it under Articles 226 and 227 of the Constitution inasmuch as the findings recorded by the Collector and the Tribunal do not suffer from any infirmity which could justify interference by the High Court.The said contention, in our opinion, must be accepted21. While exercising its jurisdiction under Articles 226 and 227 of the Constitution, it is not open to the High Court to reappreciate the evidence produced before the subordinate tribunal and on the basis of such reappreciation of the evidence, to arrive at a finding different from that recorded by such tribunal. The finding of fact recorded by the subordinate tribunal can be interfered with by the High Court only if it is found to be based on no evidence or if such a finding can be regarded as perverse. The High Court cannot convert itself into a court of appeal.23. There is nothing to corroborate the statement of Mohammed Yousuf on which reliance has been placed by the High Court. On the other hand, the said statement about Mohammed Yousuf having promised to arrange for the cargo at Bombay does not find support from the telex received at the office of the agents at Bombay on 16-8-1983 from Dubai and it is belied by the fact that no cargo was available at the Bombay Port for loading on the vessel when it arrived at Bombay24. Similarly, as regards repair of radar and VHF equipment, the Collector and the Tribunal have found that the radar was not functioning when the vessel left Dubai and that it had been repaired at Karachi and that the VHF equipment was working till the vessel reached about 100 to 150 nautical miles from Bombay Port which shows that repair of radar and VHF equipment could not be the reason for the vessel MANSCO-3 proceeding to Bombay from Karachi. The High Court, while accepting the explanation that one of the reasons for the vessel to proceed to Bombay was to have the radar and VHF equipment repaired at Bombay, has laid stress on the fact that at the time when the vessel reached Bombay, VHF equipment was not working and that two mechanics were taken to the vessel for repairing of radar and VHF equipment. The fact that the radar and VHF equipment had to be repaired at Bombay does not, however, mean that they were not functioning when the vessel left Karachi and it cannot be said that the vessel had to proceed to Bombay for repair of radar and VHF equipment25. A perusal of the impugned judgment of the High Court shows that while dealing with the writ petition, the High Court embarked upon reappreciation of the evidence and has dealt with the matter as if it was hearing an appeal on facts. Such a course, as indicated earlier, was not permissible. The Collector and the Tribunal, after carefully considering the evidence produced during the course of the proceedings, had concurrently arrived at the finding that the vessel MANSCO-3 had not come to Bombay from Karachi for a bona fide purpose and that the explanation offered for the vessel proceeding to Bombay from Karachi could not be accepted. The said finding cannot be regarded as unreasonable or perverse. We are, therefore, unable to uphold the decision of the High Court in reversing the said finding of fact recorded by the Collector and the Tribunal26. Moreover, bona fides of the owners or the Master of the vessel have a bearing only on the applicability of sub-section (3) of Section 30 which enables the proper officer to permit the Import Manifest or Import Report to be amended or supplemented if he is satisfied that the said Import Manifest or Import Report is in any way incorrect or incomplete and there is no fraudulent intention. In the present case, the question of applicability of subsection (3) of Section 30 does not arise because no Import Manifest was delivered by the Master of the vessel at any time. The intention of the owners or Master of the vessel has no bearing on the exercise of the power of confiscation of goods under Section 111 of the Act because, as laid down by this Court, confiscation of goods is an action in rem directed against the goods in respect of which the contravention rendering them liable to be confiscated has taken place. (See : Sewpujanrai Indrasanarai Ltd. v. Collector of Customs SCR at p. 838 and Collector of Customs v. D. Bhoormall. In the matter of confiscation of goods under Section 111(d) of the Act intention has, therefore, no bearing. What is required to be seen is whether the goods had been imported or attempted to be imported or brought within the Indian Customs water for the purpose of being imported contrary to any prohibition imposed by or under the Act or any other law for the time being in force. If it is found that any goods have been imported or attempted to be imported or brought within the Indian Customs water for the purpose of being imported contrary to any prohibition imposed by or under the Act or any other law for the time being in force, the said goods would be liable to confiscation under Section 111(d) and the question whether the person importing or bringing the said goods intended to commit violation of the provisions of the Act or any other law for the time being in force would be of no consequence. Similarly, clause (f) of Section 111 provides for confiscation of any dutiable or prohibited goods which are required to be mentioned under the regulations in any Import Manifest or Import Report and which are not so mentioned therein. In the matter of confiscation of goods under Section 111(f), what is required to be seen is whether the goods are dutiable or prohibited goods and are required to be mentioned in the Import Manifest or Import Report under the regulations made under the Act and whether they are mentioned in the Import Manifest/Import Report. If it is found that the goods are dutiable or prohibited goods and are required to be mentioned under the regulations made under the Act in the Import Manifest/Import Report but have not been so mentioned, the goods would be liable to be confiscated and the intention of the defaulter would have no bearing on the exercise of power to confiscate the goods. Since mens rea is not essential for invoking the power of confiscation of the goods under Section 111 of the Act, the intention of the Master of the vessel or the owners of the vessel and the circumstances under which the vessel containing the goods came to Bombay has no bearing on the exercise of the power of confiscation of goods under Sections 111(d) and 111(f) and all that has to be seen is whether the conditions prescribed under the said provisions were fulfilled so as to justify the confiscation of the goods27. As regards the non-filing of the Import General Manifest either by the Captain of the vessel or the agents of the owners of the vessel at Bombay, the High Court has held that the manifest is required to be filed within twenty-four hours after the arrival of the vessel at a customs station and that time for filing the said manifest would have started running only after the Bombay Port Trust charges had been paid and the said cargo charges were paid on 23-8-1983. According to the High Court, the Customs Officials boarded the vessel on the morning of 24-8-1983 at about 9/10 a.m. and seized the goods immediately thereafter mainly on the ground that no Import General Manifest had been filed by that time. According to the High Court, the period of twenty-four hours had not expired and there was still time to file the Import General Manifest. We find it difficult to agree with the said view of the High Court. Under Section 30(1), an Import Manifest has to be delivered within twenty-four hours after the arrival of the conveyance at a customs station. The expression customs station is defined in Section 2(13) to mean any customs port, customs airport or land customs station. The expression customs port is defined in Section 2(12) to mean any port appointed under clause (a) of Section 7 to be a customs port; and includes a place appointed under clause (aa) of that section to be an inland container depot. In the present case, the vessel MANSCO-3 had arrived at the outer anchorage of the Bombay Port on 20-8-1983. The outer anchorage is a part of the Bombay Port. This would show that the vessel MANSCO-3 had arrived at the customs port of Bombay on 20-8-1983. In view of Section 30(1) of the Act, the Import General Manifest should have been delivered within twenty-four hours of the arrival of the vessel at the outer anchorage on 20-8-1983. The High Court was in error in holding that the vessel would be treated to have arrived at the customs port of Bombay on 23-8-1983 after the Bombay Port Trust charges had been paid and the signal had been given for the vessel to be brought into the inner anchorage on or after 23-8-1983. Proviso (b) to sub-section (1) of Section 30, which empowers the proper officer to accept the Import Manifest or Import Report at any time after the expiry of the period of twenty-four hours if he is satisfied that there was sufficient cause for not delivering the Import Manifest or Import Report or any part thereof within twenty-four hours after the arrival of the conveyance, has no application in the present case because the Collector as well as the Tribunal have found that no request for filing the Import General Manifest after the expiry of the period of twenty-four hours was made at any time either by the Captain of the vessel or by the local agents at Bombay28. The Tribunal has held that the goods that were seized from the vessel were prohibited goods and the said finding has not been upset by the High Court. In the circumstances, it must be held that there was contravention of the requirement regarding mentioning of the goods in the Import General Manifest by the Captain of the vessel and the local agents of the owners of the vessel at Bombay and the goods seized were liable to be confiscated under Section 111(f) of the Act29. The High Court has held that the goods were obviously in transit to Dubai which was the port of clearance and the visit to Bombay Port was not illegitimate or illegal. In holding that there was no contravention of the provisions of clauses (d) and (f) of Section 111, the High Court has proceeded on the basis that since the vessel had come to Bombay for a legitimate purpose and there was no lack of bona fides on the part of the Master and the owners of the vessel in the ship having come to Bombay, it cannot be said that there was violation of the provisions of Section 111(d) and (f) of the Act. As indicated earlier, the finding of the High Court that there was no lack of bona fides on the part of the Master of the vessel and the owners of the ship in the ship having come to Bombay, has been arrived at by the High Court after reversing the finding of fact recorded by the Collector and the Tribunal and it cannot be sustained. We have also indicated that mens rea is not essential for invoking the power of confiscation under Section 111 of the Act and, therefore, the intention of the owners of the vessel or the Master of the vessel has no bearing on the exercise of the power to confiscate the goods under clauses (d) and (f) of Section 111 of the Act34. This distinction between the nature of the two penalties, viz., penalty in rem and penalty in personam, has been maintained in the Act. The provision regarding confiscation of goods contained in Sections 111 and 113 of the Act is a penalty in rem which is enforced against the goods, while the personal penalties imposed under Section 112 and other provisions of the Act are in the nature of penalty in personam which are enforced against the person concerned35. Section 124 of the Act, which incorporates the rule of audi alteram partem, one of the two basic tenets of the principles of natural justice, does not have the effect of making any alteration in the nature of these penalties. There may be situations where the goods are found to be smuggled goods and are seized but the identity of the owner of the goods is not known.In our view, this question must be answered in the negative because confiscation of goods under Section 111 of the Act is a penalty in rem which attaches to the goods which are the subject-matter of the proceedings for confiscation and if it is found that the goods are liable to be confiscated under Section 111 of the Act, they can be confiscated without ascertaining their real owner. Moreover, insofar as the rule of audi alteram partem is concerned, the position is well settled that an order passed in disregard of the said principle would not be a invalidated if it can be shown that as a result of denial of the opportunity contemplated by the said rule, the person seeking to challenge the order has not suffered any prejudice. Since Section 124 of the Act incorporates the said principle of natural justice, failure to give the notice to the owner of goods would not, by itself, invalidate an order of confiscation. What has to be seen is whether the owner of the goods has suffered prejudice on account of the failure on the part of the officer passing the order for confiscation of goods to give a notice to the owner of the goods before passing the order for confiscation of goods. The owner of goods ordered to be confiscated cannot be said to have suffered any prejudice in a case where notice has been given to the person responsible for the alleged contravention on which the order for confiscation of goods is founded and who alone is in a position to offer an explanation for such contravention. The requirement regarding issuing of notice to the owner of the goods under Section 124 cannot, therefore, be construed as a mandatory requirement so as to have the effect of invalidating an order. An order of confiscation would not be rendered invalid if there is substantial compliance with the requirements of Section 124 in the sense that before passing an order of confiscation, a notice has been given either to the owner of the goods or a person who is responsible for the contravention on which the order for confiscation of goods is founded and who alone is in a position to offer an explanation for such contravention36. In the present case, show-cause notices dated 31-12-1983 were issued by the Assistant Collector of Customs, R&I, Bombay, to M/s. Mustafa & Najibai Trading Co., Dubai, Respondent 1, the owners of the vessel, MANSCO-3, Nuruddin Mustafa, Respondent 2, the Managing Director of Respondent 1, Abdul Rahim Khatri, the Captain of the vessel, MANSCO-3, the Promoter and the two Directors of M/s. Regent Shipping and Trade Pvt. Ltd., the local agents of the owners of the vessel at Bombay, M/s. Aero Maritime Ltd., the agents of the owners of the vessel at Karachi and certain other persons. Replies to the said show-cause notices were filed on behalf of the owners of the vessel as well as by the Master of the vessel and the local agents of the owners at Bombay. The owners of the cargo did not appear before the Collector. None of the owners of the cargo challenged the order for confiscation of goods passed by the Collector before the Tribunal and the order of the Collector regarding confiscation of goods became final as against the owners of the goods. In the writ petition filed before the High Court, Respondent 3, claiming to be the owner of a part of the cargo which was seized and confiscated, for the first time sought to challenge the orders passed by the Collector as well as the Tribunal regarding the confiscation of the goods. In para 8 of the writ petition, it has been averred that before Collector it was pointed out that the cargo belonged to various parties and mainly to Respondent 3 and the names of the owners and other persons were furnished to the Collector and other Customs Officers and that they should be given an opportunity of hearing if any judicial order is passed in respect of the cargo belonging to Respondent 3 and other persons. The replies that were filed on behalf of Respondent 1 before the Collector in response to the show-cause notice do not, however, support the said averment. Nor is there anything in the order passed by the Collector to show that any such contention was advanced before him. The judgment of the Tribunal also does not indicate that any such plea was raised. The said contention appears to have been raised for the first time before the High Court. Moreover, under the show-cause notices the seized goods were proposed to be confiscated under Sections 111(d) and 111(f) of the Act. The owners of the vessel, MANSCO-3, the Master of the said vessel and the local agents of the owners of the vessel at Bombay were the best persons who could offer an explanation and show that there was no contravention which could justify the confiscation of goods under Sections 111(d) and 111(f) of the Act. Since the owners of the goods were not present on the scene and had no personal knowledge, they could not offer an explanation other than that offered by the owners of the vessel, the Master of the vessel and the local agents of the owners of the vessel at Bombay. In the circumstances, it cannot be said that the failure to issue a notice under Section 124 to the owners of the goods has resulted in any prejudice to the owners of the goods that have been ordered to be confiscated and such failure cannot, therefore, be a ground for setting aside the order of confiscation of goods passed under Sections 111(d) and 111(f) of the Act. We are, therefore, unable to uphold the impugned judgment of the High Court setting aside the order for confiscation of the goods passed under Sections 111(d) and 111(f) of the ActThe order of confiscation of the vessel MANSCO-3 was passed under Section 115(2) of the Act.38. The consideration which weighed with the High Court to set aside the order regarding the confiscation of the goods also weighed with it for setting aside the order for confiscation of the vessel under Section 115(2) of the Act inasmuch as the High Court has found that there was no fraudulent intention on the part of the owners of the vessel in directing the vessel to proceed to Bombay from Karachi to lift additional cargo and the purpose for which the vessel, MANSCO-3, was directed to proceed to Bombay was to lift the said additional cargo and also to have the radar and VHF equipment repaired. We have already considered the said aspect of the case while dealing with the matter of confiscation of the goods and have held that the said finding of the High Court cannot be upheld. The High Court has set aside the confiscation of the vessel also on the ground that no notice was issued to the owners of the vessel under Section 124 of the Act. In this regard, it may be stated that the show-cause notice dated 31-12-1983, indicates that the said notice was issued to Mustafa Najibai, Respondent 2, on behalf of Respondent 1, the owners of the vessel, as well as to Abdul Rahim Khatri, the Master of the vessel and the Promoter and the two Directors of M/s. Regent Shipping and Trade Pvt. Ltd., the agents of the owners of the vessel at Bombay. Respondent 1, the owners of the vessel, had full knowledge of the said show-cause notice because a reply to the said notice was filed on their behalf as well as on behalf of Respondent 2 and they had contested the proceedings before the Collector.38. The consideration which weighed with the High Court to set aside the order regarding the confiscation of the goods also weighed with it for setting aside the order for confiscation of the vessel under Section 115(2) of the Act inasmuch as the High Court has found that there was no fraudulent intention on the part of the owners of the vessel in directing the vessel to proceed to Bombay from Karachi to lift additional cargo and the purpose for which the vessel, MANSCO-3, was directed to proceed to Bombay was to lift the said additional cargo and also to have the radar and VHF equipment repaired. We have already considered the said aspect of the case while dealing with the matter of confiscation of the goods and have held that the said finding of the High Court cannot be upheld. The High Court has set aside the confiscation of the vessel also on the ground that no notice was issued to the owners of the vessel under Section 124 of the Act. In this regard, it may be stated that the show-cause notice dated 31-12-1983, indicates that the said notice was issued to Mustafa Najibai, Respondent 2, on behalf of Respondent 1, the owners of the vessel, as well as to Abdul Rahim Khatri, the Master of the vessel and the Promoter and the two Directors of M/s. Regent Shipping and Trade Pvt. Ltd., the agents of the owners of the vessel at Bombay. Respondent 1, the owners of the vessel, had full knowledge of the said show-cause notice because a reply to the said notice was filed on their behalf as well as on behalf of Respondent 2 and they had contested the proceedings before the Collector.In these circumstances, we are of the view that the order regarding confiscation of the vessel could not be set aside on the ground that no notice under Section 124 of the Act was issued to the owners of the vesselThe order passed by the Collector proceeds on the basis that respondent No. 2 is the owner of the vessel. It appears that no contention was raised before the Collector that respondent No. 2 was not the owner of the vessel and that he had no particular role in the vessel being directed to proceed to Bombay from Karachi. Before the Tribunal. however, a contention was raised that respondent NO. 2 was only the Managing Director of respondent No. 1 company and not the owner of the vessel and reliance was placed on the affidavit of respondent No. 2 dated March 25, 1985 which was filed before the Tribunal wherein it was stated that the deviation of voyage from Karachi to Bombay was without his pre knowledge as at that time he was away from Dubai and was in Europe in connection with his business.The Tribunal rejected the contention urged on behalf of respondent No. 2 and has observed that no independent evidence has been adduced to establish that respondent No. 1 company is owned by any other person other than respondent No. 2 and that it in the reply to the Show Cause Notice respondent No. 2 had been mentioned as the owner of the vessel. The Tribunal has also referred to the statement of Mohammed Yousef that he had received the telex dated August 16, 1983 from respondent No. 2 and has observed that the said statement clearly established that respondent NO. 2 knew about the voyage of the vessel from Karachi to Bombay. On that view the Tribunal upheld the penalty imposed on respondent No. 2 under Section 112 of the Act. We do not find any infirmity in the said view of the Tribunal. We are, therefore, unable to uphold the contention of Shri Rana that the Tribunal was in error in affirming the penalty of Rs. 3,00,000/- imposed on respondent No. 2 by the Collector.