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TMI Blog1992 (7) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... d to a different model of the car. The car was found to have been despatched by one Shri S.G. Thakur through M/s. Slug Motors, Middlesex, England. The expert opinion taken also confirmed the model of the car imported as 280 SEL and not 280 SE as declared. Further investigation revealed that the papers for clearance of the car were entrusted to the clearing agents by one Shri S.M. Walhekar, the appellant in the proceedings before us. Shri S.P. Kamat, the chief operator of the clearing agents concerned, stated that he had not met the owner of the car and the declaration in the Bill of Entry, which was signed by the owner, was given to him by Shri Walhekar and he was given oral instructions for the clearance of the car and he had not been given any authorisation or letter by the said Shri Walhekar. The authority also questioned him as to how the car was being cleared at Bangalore when the owner of the car was shown to be at Bombay and the said chief operator of the clearing agents has stated that he was told by Shri Walhekar that the said owner was associated in starting some factory in Belgaum with him and found it convenient to clear the car at Bangalore. Enquiries were also made at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has not financed the purchase of this car. A statement was also recorded from Shri S.G. Thakur, the person shown as importer in the Bill of Entry. Giving his background, he stated that he has given up his studies in 10th Standard and had joined Dairy Development Corporation as an apprentice and worked there after absorption and thereafter he resigned from that Corporation and joined another private firm in Secunderabad, and thereafter through one of his friends, who was also a friend of Shri S.M. Walhekar, he got a job at his Cold Storage Plant at Belgaum, where he worked for about 2 years. Shri S.M. Walhekar after that got him a job in Nigeria as Plant Engineer, where he was the Managing Director, at a salary of 800 Naira per month, which is equivalent to Rs. 11,200 and out of which he used to send half of the salary to India for his family and the remaining half he used to keep there for his own use. He worked for two years and came back to India and started his own business at Kankawally, where he invested Rs. 1 lakh in stainless steel utensils business and was earning Rs. 2,000 per month and on return from abroad he had availed of TR concession. His address given in the passp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncing or purchasing the car. He also stated that apart from the purpose of recording a statement he had never been to Bangalore for handing over the documents to the clearing agents. A show cause notice bearing No. C. No. Vffl/10/44/85 Cus. Adjn./ dated 13-5-1986 was issued to Shri S.G. Thakur, Shri S.M. Walhekar and M/s. Omkar Associates/ calling upon them to the Collector of Customs, Bangalore, as to (i) why the Mercedez Benz car under seizure should not be confiscated under Section 111(d)/111(m) of the Customs Act, 1962 and (ii) why penalty should not be imposed on each of them under Section 112 of the Customs Act, 1962. In the proceedings drawn both Shri S.M. Walhekar and Shri S.G. Thakur disowned any connection with the car. Shri S.G. Thakur in his reply reiterated what he had stated earlier and pleaded ignorance. So far as Shri S.M. Walhekar is concerned, in spite of ample opportunities having been given by the adjudicating authority neither he sent a reply to the show cause notice nor he appeared for the personal hearing and the case was decided by the adjudicating authority vide his order C. No. VIII/10/44/85 Cus. Adjn., dated 21-12-1987. Under the said order the Mercedez B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inasmuch as the substance of these letters had already been set out in the show cause notice issued. Copies of these letters were given to the appellant's Consultant. After getting these copies he was still insisting that the full correspondence showing the continuity of the communications exchanged between the different authorities should have been made available to him. Adverting to the merits of the case, he pleaded that the learned Collector has held that the appellant was the brain behind the importation of the car. He pleaded that there is no evidence to come to this conclusion and pleaded that even Shri S.G. Thakur has not stated so and in this connection he referred to the statement of Shri S.G. Thakur dated 23-4-1986 and 24-4-1986 filed in the paper book. He pleaded that no doubt Shri S.G. Thakur in his statement has disowned any connection relating to the importation of the car, but the fact remains that he had signed the application to the licensing authorities and had also signed the affidavit dated 21-1-1986 in regard to the importation of the car. He pleaded that this affidavit of 21-1-1986 clearly establishes that it was Shri S.G. Thakur who was instrumental in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b). He pleaded for this reason alone the show cause notice issued requires to be struck down. 4. The learned JDR for the Department pleaded that all the documents filed for clearance of the car give the office address of Shri Walhekar and the licensing authority was also furnished the same address. He pleaded that Shri S.G. Thakur has come out clean and clearly stated as to how he came to sign various documents and that all he did was for the sake of his ex-employer. He pleaded that Shri S.G. Thakur drew a salary of just about Rs. 11,000 while he was abroad and out of that he used to remit 50% to India leaving a small balance with him for his day-to-day needs and that he could not have had enough funds for importing the car. He pleaded that Shri S.G. Thakur never applied for the amendment of the CCP when the model of the car was found to be different from that for which the CCP was issued. He pleaded in the facts and circumstances of the case the learned lower authority's order levying penalty on the appellant was maintainable in law. 5. Shri Alimchandani, the learned Consultant, in reply stated that so far as amendment of the CCP was concerned, the same was applied for by Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Bombay, this address was the office address of Shri S.M. Walhekar and the employee of Shri Walhekar found at that address one Shri Pethe Govind Pandurang confirmed that Shri S.G. Thakur was not residing at that address and the place belonged to Shri S.M. Walhekar and he stated that whenever he made visits to Bombay he stayed there. Shri Walhekar stated that the documents viz. Bill of Entry, Invoice, CCP, etc. have been given to him by Shri S.G. Thakur. He also accepted the fact that Shri Thakur was working under him as Plant Engineer at a unit in Nigeria where he was the Managing Director. He pleaded that Shri Thakur did not know anything about clearance through Customs and he had asked him to clear the same. He, however, stated that Shri Thakur had not come after the seizure of the car as he was afraid of Customs and was consulting some legal experts at his place at Kankawally. He also pleaded ignorance in regard to the tampering of the model number of the car and further stated that Shri S.G. Thakur had approached the licensing authorities at Delhi at the initial stage and also after the seizure of the car regarding amendment of the CCP. As against this Shri S.G. Thakur has sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... salary he was drawing it was impossible for him to have dreamt of importing an expensive car like Mercedez Benz. It was obviously somebody else who was interested in getting the car and getting hold of the same after importation. The payment also could not have been made by Shri S.M. Thakur, in view of his limited means. The question, therefore, is if the car does not belong to Shri S.G. Thakur, which we hold is correct position in view of the circumstances of Shri S.G. Thakur, then who arranged for its importation. It is seen that Shri S.G. Thakur was working under Shri Walhekar. He was beholden to him for having been employed in his plant and later to have been taken for employment to Nigeria. He, as he has stated, wanted to oblige his ex-employer. It is seen that in the CCP the address shown was that of the office of Shri Walhekar. There was no reason if Shri Walhekar was not interested in the car for him to have given his address. If the car belonged to Shri S.G. Thakur he would have come himself to Bangalore to sign the declaration and handed over the papers to the clearing agents and would have been present himself for clearance of the car, being a very expensive and valuabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay that least an abnormal circumstance if the car belonged to him. Normally an importer of such a costly item would be monitoring the progress of clearance on day-to-day basis. The reason for this comes out when one goes through his statement. He clearly states that he has no interest in the car and disowns it and he admits to have lent his name for importation of the car at the behest of Shri Walhekar, his ex-employer, to oblige him. According to him it was Shri Walhekar's idea to import the car as Shri S.G. Thakur was told by him they could make a profit after they sold the car. Shri Walhekar has informed him not to worry about finance and other things as the appellant would be taking care of the same. We find that Shri S.G. Thakur is not even a matriculate and worked as a technician after obtaining vocational training and was employed in India in the establishment headed by Shri Walhekar and later Shri Walhekar got him a job in a factory in Nigeria where Shri Walhekar was the General Manager. Shri S.G. Thakur returned after a stay of two years abroad and followed up on the suggestion of Shri Walhekar for importation of the car. It was natural for a person like S.G. Thakur and hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India. Shri Thakur has explained in his statement that he merely signed the blank application for the issue of CCP and even the affidavit for the same was sent to him at his village where he signed. We observe that there is no reason as to why the address in the CCP and other documents should be that of Shri Walhekar unless it was Shri Walhekar who had it entered so. This we observe he had done obviously to exercise control over the importation of the car and the matters connected with the same. It was only Shri Walhekar with his status who could think of getting a Mercedez Benz car and had the necessary resources to get the same being a General Manager of a firm in Nigeria. The circumstances clearly point to the fact that the whole affair of importation of the car was stage managed by him. Looking at the circumstances of Shri S.G. Thakur, his personal background, personal status, we find that the facts stated by him in his statement reflect the correct position. He has accepted his role and signing of application form, affidavit and also the declaration appended to the Bill of Entry and has pointed the finger at Shri Walhekar for acts regarding importation of the car. His statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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