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TMI Blog1989 (9) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... port Control Act, 1947 read with Section 11 of the Customs Act, 1962. On interrogation about the possession of the car M.G. Agarwala stated in writing on 23-11-1986 that the car, which was not in working condition, belonged to his friend one Shri Dawa Kukpa of Gaylegphug, Bhutan and had been left to his premises on 22-11-1986 for repairing purpose and the documents pertaining to the car were lying with Dawa Kukpa. On search, conducted by the Customs Officers of Dhubri on 25-11-1986 (i) mortgage deed, (ii) a sale deed, (iii) a kaccha receipt dated 17-10-1982 showing receipt of Rs. 15.000/- by Smt. Lhakpa Dukpani were found in the residence of M.G. Agarwala; and other papers relating to the seized car were recovered from the office premises of M/s. Assam Industries. M.G. Agarwala stated that the documents were owned by his friend one Ashok Kr. Moth of Gaylegphug, Bhutan and had been left to his place during his visit last month. On 1-12-1986 M.G. Agarwala appeared before the Superintendent, Customs Central Excise, Dhubri and submitted a written statement stating therein inter alia that he had failed to contact Shri Moth. The said car was kept under mortgage to Shri Ram Awatar Agarw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey had no business or personal relation with Shri Ashok Kr. Moth of Gaylegphug, Bhutan. The car is owned by him by way of forfeiture of the mortgage agreement and neither Madan Gopal Agarwala nor M/s. Assam Industries are the owner of the car. But the transfer of the car in his name had, however, not been done. 6. Further investigations were done in the matter and a Show Cause Notice was issued on 21-5-1987 to all the parties concerned including the present appellant stating as to why penalty should not be imposed. After the adjudication proceedings, learned Additional Collector ordered the absolute confiscation of the vehicle in question and imposed a personal penalty of Rs. 10,000/- on Ram Awatar Agarwala under Section 112B Clause (1) of the Customs Act, 1962. He dropped the proceedings against M.G. Agarwala. As far as the appellant is concerned, who was also heard by the Collector, no penalty was imposed on her. The appellant has filed this appeal on the ground that after the death of her mother she has become the legal owner of the car and there was no sale or mortgage at any time. Therefore, the appellant is also aggrieved of the order of the Collector and the car should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sferred to a citizen of India. Even now the tax for the car is being paid in the name of the appellant s mother. He contended that for all the above-mentioned reasons the car may be release and the appeal may be allowed. 8. The learned JDR Shri P.C. Jain stated that during the search incriminating materials were recovered from the premises of Assam Industries and also from the residence of M.G. Agarwala. He brought to our notice an agreement dated 14-7-1982 entered into by Lhakpa Dukpani, mother of the appellant. In that agreement she had agreed to mortgage the car till the liquidation of her loan of NU-42,000/- which she took from Ram Awatar Agarwala. There is another document which is a Sale Deed dated 17-3-1986 signed by the present appellant in favour of Ashok Kr. Moth. The learned DR also relied on the search list conducted in the residence of M.G. Agarwala from where the sale deed and agreement were seized. It was therefore contended that there was a sale transaction. He also contended that though it was claimed that the car was left on 22-11-1986 there is a statement of Phani Chakraborty, owner of Chakraborty Motor Garage, stating that he has repaired the said car of M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -3-1986 reads as follows :- We, Mr. Ashok Kumar Moth, the Purchaser on the one hand and Mrs. Lhakpa Dukpani, the Owner/Seller on the other hand of the vehicle Registered No. BCP-0112/Toyota Car enter into a Sale Deed Agreement on this Day the 17th March, 1986 on clear payment amounting to NU-25,000/- (Ngultrums Twenty-Five thousand) only. The dues of admissible Taxes, if any till the date will be paid accordingly by either of the parties concerned. As such, registration of Vehicle Regd. No. BCP-0112, Toyota Car may please be favoured in the name of Mr. Ashok Kumar Moth, the Purchaser, Gaylegphug, Bhutan. Sd/- Sd/- Purchaser (Ashok Kumar Moth) Gaylegphug, Bhutan Dated..... Owner/Seller (Mrs. Lhakpa Dukpani) Gaylegphug, Bhutan Dated 17-3-1986 12. Thus, the above-mentioned Agreement dated 14-7-1986 reveals that Mrs. Lhakpa Dukpani late mother of the appellant had incurred a loan of NU-42,000/- and mortgaged the said car for the sum of Ram Awatar Agarwala, who is brother of M.G. Agarwala. This Agreement is further corroborated by the statement of the mechanic who is the owner of Chakraborty Motor Garage of Kokrajhar, Assam. Shri Phani Chakraborty, the owner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the theory that the car was left on 22-11-1986 has no basis. In such circumstances, we are unable to accede to the contention of the learned Consultant that there is no evidence to prove the sale of the car or its mortgage to Ram Awatar Agarwala. The car was thus put in the possession of Ram Awatar Agarwala of Assam Industries from 1982 against a loan of NU-42,000/- which the appellant s late mother had incurred from Assam Industries. It is not the case of the appellant that this amount is discharged and the mortgage is redeemed. In such circumstances, the only conclusion is that the car was given to Ram Awatar Agarwala against the debt which was incurred by the appellant s mother. This proves that the car was given to an Indian national but the learned Consultant filed xerox copies of the token of this car and the tax paid receipt which shows that tax upto 31-3-1988 was paid in the name of the appellant s mother. But a mere payment of the tax in the name of the appellant s mother will not rebut the above-mentioned positive evidence which is produced by the department. For the purpose of hiding the sale transactions, these taxes might have been paid in the name of appellant s mo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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