TMI Blog2001 (4) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... 124 of the Customs Act proposing to confiscate the same under Section 111(d) (m) of the Customs Act, 1962 and levy of penalty under Section 112(a) of the Customs Act was not proper and legal and the same was liable to be quashed. 3. Shri Alex Joseph (hereinafter referred to as A-2) a broker, deals in cars. He was alleged to be the go-between for the sale of the imported car and its purchaser M/s. Mohan Breweries and Distilleries Ltd., Chennai. He introduced A-1 and persons from M/s. Mohan Breweries for commission. 4. The Original Authority found that A-2 had not cooperated with the investigation in spite of clear notice given to him by the investigating agency and his role was quite different from the other persons involved in the clearance of the vehicle through customs. It was found that A-2 did not state how he knew A-1 had imported a car meant for sale. Statements have been recorded from different persons and relied upon, which inter alia narrated, that A-2 had come to the offices for taking delivery of the car and he has shown personal interest beyond the scope of a broker and because of his non-cooperation with the investigations, the actual nature of the relationship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onnected with the clearance of the car. The learned Commissioner (Appeals) found, the Consul (Economic) Indian Embassy, Dubai, had forwarded the documents that the said car was in fact imported into Dubai on 13-11-1997 and therefore, the learned Commissioner (Appeals) relying on a report of the Consul (Economic), Dubai, confirmed the finding that the A-2 had fraudulently arranged for A-1 to have fabricated documents in Dubai to show registration of the vehicles on 15-1-1997 and the claim that the vehicle was sent out for repair of the gear parts was far-fetched and was not acceptable and therefore held that the lower authority had rightly ordered confiscation of the vehicle under Section 111(d) (m) of Customs Act, 1962 and penalised A-1 A-2 under Section 112A for the complicity in the offence and the penalties imposed was reasonable and did not warrant reduction and the decisions of CEGAT relied upon were not of all force. The learned Commissioner (Appeals) found that the redemption fine can be reduced to Rs. 5 lakhs, as M/s. Mohan Breweries and Distilleries Ltd. taking from whose ownership the car was found had incurred cost towards purchase and were not the original importers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Act, which could call for a review of the order under Section 47 of the Customs Act. It was further submitted that in this case all the original documents establishing that the goods were originally imported and sent back after repairs and replacements and re-imported into UAE were in the possession of the appellant and no opportunity was given to the appellants to place it on record. The Commissioner of Customs (Appeals) before whom the documents were placed and a specific grievance was made did not apply her mind to these aspects and has merely and mechanically endorsed the Order-in-Original passed by the adjudicating authority. In the circumstances, it was submitted that there has been denial of principles of natural justice, which necessitates an order for de novo examination of the documents and the various contentions taken by the appellants. In this context reference was also made to the decision of the West Zonal Bench of the CEGAT in the matter of Commissioner of Customs, Mumbai v. Liwe International, reported in 1985 (20) E.L.T. 107. Attention was also invited to the decision of this Hon ble Tribunal in the matter of Senior Magnetics Ltd. v. Collector of Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als) and submitted that Supreme Court decision in the case Jain Shudh Vanaspathi Ltd. - 1996 (86) E.L.T. 460 (S.C.), would be applicable in this case, since the charge is that the appellants had produced documents incorrect and fraudulent in the proceedings, before the Customs. Got clearance of the said car, which would not have been otherwise permissible. She further submitted that the fine and penalties imposed are adequate and the order needs no interference. 8. We have considered the submissions and the material on record and find : (a) There is no substance in the arguments of the learned advocate that the decision in the case of Jain Shudh Vanaspathi - 1996 (86) E.L.T. 460 was applicable to only duty demands under Section 28 and since there was no duty demanded in this case, the judgement of the Supreme Court was distinguishable. We find that the Supreme Court in this decision has held as follows : An order under Section 47 obtained by the employment of fraudulent methods does not have to be set aside by the exercise of revisional powers under Section 130 before the ill-effects of the fraud can be set right by initiation of the process of confiscation of the fraudu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which has been relied upon by the Commissioner (Appeals). Therefore we find that the principles of natural justice have been not complied with, the matter therefore needs to be remanded back for de novo adjudication as pleaded by the learned advocate for the appellants. (c) We also find that the learned advocate has submitted that A-2 had not committed any offence inasmuch as there was no error of omission or commission on his part to render the goods liable for confiscation and we also find that the original authority has found A-1 and A-2 liable for penalty for the reason that they did not cooperate with the investigating authority. We do not find this reason to be a permissible reason, to inflict the penal provision of Section 112A of the Customs Act, 1962. The provisions of the Act are very clear and the Original Authority should come to a clear-cut finding as to for which particular act of commission or omission, the liability of penalty was being fixed on A-1 and/or on A-2. The order is therefore not upheld and is required to be remanded for re-determination to the Original Authority. (d) As regards the redemption fine, we find that the margin of profit has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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