TMI Blog2013 (4) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... 111(d), an IE code was required for the importer and the de facto importer Mr. Rehman Shaikh did not have any such code. Therefore, violation of Section 7 of FTDR Act, 1992 and Rules 2(c), 11 and 14 of Foreign Trade (Regulations) Rules, 1993 is also established. Consequently, provisions of Section 111(d) are attracted. Thus liability to confiscation stand clearly established in this case. Consequently both the appellants Mr. Rehman Shaikh and Mr. Shaikh Safder are liable to penalty under the provisions of Section 112(a) and Section 114AA for the commissions and omissions in rendering the car liable to confiscation Even if the goods have been disposed of during the pendency of adjudication proceedings, the Revenue could not have appropriated the entire sale proceeds. This Tribunal in the case of Yakub Ibrahim Yusuf (supra) had held that in a case where goods have been sold without giving option of payment of redemption fine to importer, importer was entitled to return of sale proceeds with deduction for redemption fine and penalty and duty was not required to be deducted as there was no actual redemption of goods. Therefore, in the present case, where the goods were seized before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Shaikh Safder revealed that the actual value paid for the car was USD 1,08,000 and the difference between the value declared and the actual value was remitted in cash at Dubai. The investigation also revealed that Mr. Shaikh Safder in whose name the car was imported was not the real owner of the car and he had merely lent his name for a monetary consideration and the imports were actually made by Mr. Rehman Shaikh. Contemporaneous imports indicated the value to be in the range of GB P 54000. The car which was lying in the docks was seized on 14-5-2009. A show cause notice dated 12-11-2009 was issued, inter alia, proposing to enhance the value of the car seized from the declared CIF price of US $ 64000 to US $ 108000 and proposing to confiscate the car under the provisions of Section 111(d) and 111(m) of the Customs Act, 1962 for contravention of the provisions of Section 7 of the Foreign Trade (Development Regulation) Act, 1992 and Rule 2(c), Rule 11, Rule 14 of the Foreign Trade (Regulations) Rules, 1993 and for misdeclaration of value. The notice also proposed to impose penalties, inter alia, on Mr. Shaikh Safder and Mr. Rehman Shaikh. The notice was adjudicated and the va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar and he is the owner as shown in the Bill of Lading and Invoice. (e) Imposition of penalty on the appellants are not warranted. Accordingly he pleads for setting aside the impugned order and allowing the appeals. 4. The ld. Dy. Commissioner (AR) appearing for the Revenue re-iterates the findings of the lower authorities. He submits that the importer in his statement recorded under Section 108 of the Customs Act had clearly admitted that he was not the actual importer and he had merely lent in his name and therefore, he was not entitled to any redemption. Accordingly he prays for upholding the impugned order. 5. We have considered the submissions made by both the sides very carefully. We have also perused the various statements recorded under Section 108 of the Customs Act from both the appellants Mr. Shaikh Safder and Mr. Rehman Shaikh and also the documents relied upon by the Revenue in support of their case. 5.1 The first issue to be decided is whether the Toyota Landcruiser vehicle imported vide B/E No. 986965, dated 1-9-2008 is liable to confiscation and if so, under what provisions. The allegation in the show cause notice and conclusion drawn in the orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have to make a payment of US D 64000 towards purchase price of the said vehicle through his bank account and the said amount was paid to him in cash in UAE Dirhams amounting to 231000 by one Mr. Ayub, a cousin of Mr. Rehman Shaikh. Mr. Rehamn Shaikh had also told him that though the value of the vehicle would be in the region of USD 1,08,000 to 1,10,000, they would be showing the value of US $ 64000 only in the import documents to save customs duty and other taxes. As per the instructions of Mr. Rehman Shaikh, he had sent his passport and Mr. Rehman Shaikh, after some time, informed him that the Toyota Land Cruiser imported in his name had arrived at Nhava Sheva and he (Rehman Shaikh) would give him a sum of ₹ 2 lakhs along with his passport after clearance of the vehicle from the Customs. In the said statement, Mr. Shaikh Safder further admitted that the vehicle Toyota Land Cruiser of 2008 Model for which B/E was filed in his name did not belong to him and the Department may deal with the same as per law. It is also admitted by Mr. Shaikh Safder in the said statement that a notice dated 1-10-2009 received by the DRI from the Advocate Mr. P.A. Augustin of Cochin on his be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y show the value to be US $ 108000 and the invoice for US $ 64000 dated 31-7-2008 submitted to the Customs to be a fabricated one. It is also a settled position in law that admitted facts need not be proved as held by the Hon ble High Court of Madras in the case of Govindasamy Raghupathy [1998 (98) E.L.T. 50 (Mad.)]. The contemporaneous import of identical car vide B/E 616434, dated 23-9-2008 and 707100, dated 5-12-2008 through Nhava Sheva Port show the value to be GBP 54000 which more or less matches with the value of US D 108000 adopted for valuation of the impugned car. Thus misdeclaration and liability to confiscation under Section 111(m) of the Customs Act, 1962 is clearly established. In the light of these evidences, the determination of value at US $ 108000 as the purchase price by the adjudicating authority cannot be faulted. 5.7 As regards the liability to confiscation under Section 111(d), an IE code was required for the importer and the de facto importer Mr. Rehman Shaikh did not have any such code. Therefore, violation of Section 7 of FTDR Act, 1992 and Rules 2(c), 11 and 14 of Foreign Trade (Regulations) Rules, 1993 is also established. Consequently, provisions of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view of the fact no type approval certificate has been given in respect of the impugned vehicle as required under licensing Note 7 read with Note 2 appended to Chapter 87 of ITC (HS) Classification. However, there is no mention in the said order about the relaxation obtained by the appellant Mr. Shaikh Safdar from DGFT, New Delhi, vide letter dated 18-1-2010. In the absence of a clear finding on this matter, denial of option to redeem the goods on payment of fine is not correct in law. Even if the goods have been disposed of during the pendency of adjudication proceedings, the Revenue could not have appropriated the entire sale proceeds. This Tribunal in the case of Yakub Ibrahim Yusuf (supra) had held that in a case where goods have been sold without giving option of payment of redemption fine to importer, importer was entitled to return of sale proceeds with deduction for redemption fine and penalty and duty was not required to be deducted as there was no actual redemption of goods. Therefore, in the present case, where the goods were seized before clearance from the customs, the option to pay fine in lieu of confiscation should have been given to the person who in the view o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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