TMI Blog1998 (12) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... older of Surendra Kumar Mehta. After investigation and issue of show cause notice and receiving reply and personnel hearing, all the three cars were absolutely confiscated on 2-3-1989 by Deputy Collector of Customs, SIIB, and Rs. 1 lakh each was imposed on Appellant and Surendra Kumar Mehta, and Rs. 5 lakhs on Yogesh Mehra. In the appeal preferred by the appellant, against the above order Collector (Appeals) of Customs reduced to the penalty to Rs. 10,000/- on the Appellant in the impugned order upholding the case of the Appellant in part, holding him as genuine person, and inducting negligence, and unconcerned with the imported car, in not even bothering to enquiry about the whereabouts of the car, and safeguarding his interest in it as owner of the same. Hence this appeal. 2. In support of the appeal, the learned Counsel for the Appellant has submitted his argument that order under Section 47 of Customs Act, 1962 clearing the imported car is a quasi judicial order, which cannot be questioned under the show cause notice under Section 124 of Customs Act, 1962 but the only recourse is under Section 129D of Customs Act, 1962 as per 1987 (28) E.L.T. 63 Bombay High Court judgment. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication of mind, and reasoning to rebut the case of the Appellant. There is no finding of sale of car by Appellant to Yogesh Mehra, even if sold it is a post importation act, which is beyond the jurisdiction of Custom authorities. Confiscation under Section 111(d) of Customs Act, 1962 is bad in law. There is no bar under the present policy to sell the imported car, which is a procedural law, having retrospective effect, which is not at all considered by the lower authorities. On extraneous consideration and bias they are passed. If really Yogesh Mehra was the beneficiary, he would have got repaired the car and used it. The car would not have been found in the garage for seizure. The learned DR has argued that impugned order is quite exhaustive and well considered. Circumstances of the case clearly goes against the Appellant. If really car was very much heavily damaged, there would have been an insurance claim which is not done. Appellant has lost interest after giving the power of attorney in favour of Yogesh Mehra, who has paid duty of the imported car, and kept the same in the garage alone with two other cars, Simultaneously imported and cleared with power of attorney by him by p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on whose behalf the said cars were appear to have been imported have disowned the import of the same and have stated that it was only at the instance of Yogesh Mehra cars No. GRJ 5314 have been imported and the entire charges for clearance including payment of duty were paid by Yogesh Mehta, and all the three cars were found in possession of the same garage M/s. A.V. Auto Works, whose owner Ganesh Kotian was known to him. Mr. Yogesh Mehra could not give the whereabouts of the Appellant, for whom he had cleared the car No. TCD 274 which was lying in garage since clearance. Shri Yogesh Mehra appears to have not only managed to obtain CCPS for clearance of respective cars on the basis of misrepresentation, but has also financed for the purchase of car and thereafter for shipment and clearance through customs with a mala fide intention of either using the cars for his own use or for trading purpose, in utter violation of import trade control regulation, rendering the import of cars unauthorised which are liable for confiscation under Section 111(d) of Customs Act, 1962 read with Section 392 of Import Export (Control) Act, 1947 Clause (5) of Import (Control) Order 1955 in violation in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olation of no sale condition, it is withdrawn by licensing authority and transferee of residence can legally sell the car. This is a procedural law with retrospective effect. It is held in para 11, benefit of doubt is given to the party as to the fictitious name of Appellant as contended by the department which is not conclusively proved by it. So the genuineness of the Appellant is accepted. From the statements recorded and circumstances, it is held that the Appellant s car was also basically imported at the instance of Yogesh Mehra, who was to be the ultimate beneficiary and owner of subject car. But in the same para it is also held that statement of Ganesh Kotian garage owner dated 19-11-1987 states that he does not know the name of person who had brought the car with No. TCD 274, is declared owner of which is none other than the Appellant for want of charge on Ganesh Kotian, he is not penalised although it is held that he is also a party to fraudulent import, but responsibility on him is fixed to pay the penalty of Rs. 1 lakh imposed on the appellant as he had authorised the consultant to appear for Appellant. The above decision and reasonings disclose that conclusion and findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed, affecting him. In Para 56 it is commented that either the Appellant or anybody on his behalf have not claimed any insurance on the substantial damage caused to the imported car as per the Appellant during transportation. This shows lack of interest in it by the Appellant. It is considered in para 58, 59 that Appellant has only lent his name and acted as front, and real beneficiary is Yogesh Mehra for his personal ends, thereby given a legal cover to illegal transactions as two other cars also covers the same type of circumstances and evidence, in the same period by a common Power of Attorney holder, a real importer. The adjudication order is confirmed so far as confiscation is ordered. In paras 61 to 66 circumstances narrated by Appellant is appreciated, and penalty is reduced from Rs. 1 lakh to Rs. 10,000/-. 7. It is to be seen, from the documents available on record and appeal memorandum whether the impugned order requires to be set aside. From the show cause notice dated 11-5-1988 at page 6 it is seen that only name of the Appellant is handwritten without any address, while attesting it. No material is available on record to show that actually show cause notice was atte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that the above letter is satisfactorily replied by the department. Exhibit `G is the bond dated 14-8-1984 of the Appellant, attested with the surety of Oriental Bank of Commerce, Fort, Bombay in favour of Chief Controller of Imports Exports through Jt. Chief Controller of Exports Imports, with respect to goods cleared, and Exhibit H is the acknowledgment of it by Controller of Chief Controller of Imports Exports. So from the above it is clear that Appellant has taken active role in importing his car. The appeal memorandum narrates in detail the reasons which prevented him from coming to Bombay which is also narrated in the impugned order, and it is also accepted by the Collector (Appeals) in reducing the penalty. 8. There is no material, regarding the suspected mis-declaration while getting CCP by the Appellant and also an attempt to transfer the imported car of the Appellant in favour of Yogesh Mehra by the Appellant under any document or oral understanding, which is available in respect of two other cars between Yogesh Mehra and Surendra Mehta. So the case of Appellant does not attract Section 111(d) of Customs Act, 1962 as prevailing in the case against Surendra Mehta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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