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GERSON DA CUNHA Versus COMMISSIONER OF CUSTOMS

Undervaluation of Cars imported - it was noticed that the cars were actually of higher engine capacity than declared – It was noticed that prices declared by assesse were much lower than actual purchase price/commercial prices – confiscation and levy of Penalty – Charge of abetment - Held that:- Appellant engaged services of importer who committed mischief by disclosing engine capacity of car to be below 1600 CC – It was for this reason adjudication order, while confiscating cars imposed penalty .....

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of differential duty – Held that:- customs authorities invoked provisions of Section 28 and therefore, took benefit of extended period of limitation of five years – As purchaser, appellant was fastened with liability of differential amount of duty and there was no dispute that it was to be paid by appellant as he was owner of car – Thus no merit appeal found – Appeal dismissed – Decided against Appellant. - Civil Appeal No. 6989 of 2004 with CA Nos. 7593 of 2004 and 5142 of 2005 - Dated:- 22-4 .....

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ppeal No. 7593 of 2004 : Though the dispute which is involved in these appeals is in a narrow compass, we would like to mention those facts leading to the filing of these appeals by the present appellants. 2. One Mr. S. A. Futehally (hereinafter referred to as importer) was the sole proprietor of M/s. Ashiya Motors which was the franchise of M/s. Volkswagen AG, Germany. During the period from 1987-1999, a total of about 71 Audi cars manufactured by M/s. Volkswagen were imported by him into .....

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ces was lower than the actual purchase price/commercial prices. On this basis, show cause notices were issued against the said importer. The show cause notices were also issued against these two appellants namely, Mr. Atul H. Mehta and Mr. Gerson Da Cunha and the reasons for issuance of notice against these persons shall be recorded at a later stage. After adjudication of the matter, a common order was passed by the Collector confiscating these cars and penalties were also imposed on the said im .....

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ese appeals have been dismissed as abated by separate orders passed on 22-4-2015 because of the reasons that Mr. Futehally died during the pendency of the appeals and his legal heirs have decided not to continue with the matters and therefore, did not bring themselves on record. 4. Now we come to the role of two appellants. Insofar as Mr. Atul H. Mehta is concerned, he was in some employment in Singapore from September, 1984 to January, 1988. He was interested in importing one Audi 80 Car o .....

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ing the car of Mr. Mehta and imposing penalty upon Mr. Futehally, the adjudicating authority also imposed a penalty of ₹ 1 lakh upon Mr. Mehta. The reason given in the impugned order passed by the Collector is that Mr. Mehta conspired with Mr. Futehally leading to making of wrong declaration. We find from the impugned order that the main reason attributed for the alleged conspiracy is that it was done to earn commission. In support of this, one letter dated 12-12-1988 written by M/s. Ashiy .....

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was entitled to import the car even with higher engine capacity as he was armed with the import license for the same. We, accordingly, are of the opinion that no penalty could have been imposed upon Mr. Mehta and the same is hereby set aside. 7. We are informed at this stage that as a consequence of aforesaid penalty imposed on Mr. Mehta, the Revenue has lodged prosecution which is pending before Chief Metropolitan Magistrate, Esplanade, Mumbai. Those proceedings are also quashed. 8.  .....

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ited on 11-7-1988. This car was seized on 11-7-1990 by the custom authorities. But thereafter released on 16-7-1990 when the appellant gave the bank guarantee for payment of differential amount of duty. Thereafter show cause notice was issued to the appellant on 21-1-1991 which has resulted in demand of the aforesaid differential duty and that order has been upheld by the CESTAT. It is against the order of the CESTAT, the present appeal is preferred. The only argument raised by the learned couns .....

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