2015 (11) TMI 257 - AT - Customs

Mis-declaration under Transfer of Residence Scheme Imported Toyota Prado vehicle imported by mis-declaring the model code of the vehicle and year of manufacture as 1998 but was of higher model Alleged that appellant was involved in selling the car to Shri Roshan Somjee despite knowing that vehicle imported under T.R. scheme cannot be sold for period of two years thus car is liable for confiscation under Sec. 111(o). Appellant contends that car was registered in name of Roshan Somjee only, after 2 years of its importation and NO SALE condition is not mentioned in SCN issued Further contended that he was not involved in clearance of car through Customs but was involved to the extent of deferred sale of the vehicle on Commission basis. Held That - Condition under Transfer of Residence Scheme which places restriction of 2 years have been violated as sale consideration of car was paid and delivery taken by buyer, Roshan Somjee, before expiry of two years - Helping in identification of willing buyer and some financial arrangement does not mean appellant has venially violated the provisions Penalty thus imposed is excessive and reduced Decided partially in favour of appellant.

Summary

Issues:
Violation of post-import conditions under Transfer of Residence Scheme by a broker in imported cars leading to penalty imposition.

Analysis:
The case involved an appeal against an Order-in-Appeal passed by the Commissioner (Appeals), Mumbai Zone-I, regarding the violation of post-import conditions under the Transfer of Residence Scheme by a broker in imported cars. The appellant, a broker named "Shri Nalin Choksey," was accused of being involved in the sale of a Toyota Prado vehicle imported under mis-declaration. The appellant facilitated the sale of the vehicle to a buyer named Shri Roshan Somjee, which was alleged to be in violation of the two-year restriction on selling vehicles imported under the Transfer of Residence Scheme.

The appellant contended that the allegation of violating post-import conditions was erroneous as the vehicle was registered in the name of Roshan Somjee only after two years of importation, thereby claiming no violation. It was argued that the "NO SALE" condition within two years of importation was the responsibility of the importer, not the appellant. The appellant also denied abetting any offense, stating that the importer had the intention to sell the car from the beginning. Reference was made to a judgment of the Bangalore bench of the Tribunal, emphasizing that the appellant's involvement did not amount to dealing with the car knowingly liable for confiscation.

After considering the arguments from both parties, the Tribunal found that while the transfer of the vehicle to the buyer occurred after two years of import, the sale consideration and delivery had taken place before the expiry of the two-year period, thus violating the Transfer of Residence Scheme conditions. However, the Tribunal concluded that the appellant's involvement in facilitating the sale did not amount to a deliberate violation of the law. Therefore, the Tribunal held that the penalty imposed under Section 112(a) & (b) of the Customs Act was excessive and reduced it to Rs. one lakh.

In conclusion, the Tribunal partially allowed the appeal, reducing the penalty imposed on the appellant.