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TMI Blog1994 (1) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... that though the said Carnet was discharged, the Car was not actually re-exported and unlawfully kept in India. Accordingly, show cause notice was issued for confiscation of the said vehicle under Sections 111(d) and 111(o) of the Customs Act, 1962, in addition to imposing penalty under Section 112 of Act. In reply to the show cause notice as well as during the personal hearing before the Adjudicating Authority it has been pleaded on behalf of the party that the appellant had purchased the said vehicle from one Ramgopal of Chandigarh for Rs. 30/000 and same was transferred in the name of the appellant on 20-3-1991. It was contended that he purchased the car in accordance with law and that he did not act or abet in any action which rendered the car liable to confiscation or to attract penalty under the Customs Act. On adjudication, the Collector disbelieved the statement of the appellant that he purchased the said car against cash payment on the Road side without any verification with regard to the identity of its holder/seller since the said Ramgopal neither appeared nor traced. Collector observed that purchase of the car and that too with a duplicate registration Book is a wilful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of penalty. While reiterating the findings given in the impugned order, he submitted that car was registered in Chandigarh on the basis of the bogus N.O.C. purportedly issued by Registration Authority, Calcutta. Then the car was registered in Delhi on basis of bogus N.O.C. statedly issued by Chandigarh Registration Authority. Further, the Carnet-De-Fassage was cancelled on the basis of wrong declaration made to the Automobile Association and such declaration was supported by forged documents purportedly issued by Delhi Customs. Since entire transaction is illegal and vehicle has been transferred in the name of the appellant on the basis of bogus No. Objection Certificate and registration, department is justified in ordering for absolute confiscation and imposing penalty. Since the vehicle in question is of foreign make, the appellant should have obtained all the Customs papers/legal documents, i.e., proof of duty payment etc. with reference to legal impartation of the vehicle to avoid penal action. He said that it is settled law that any person who is found in possession of illegally imported goods, the liability extends even in the hands of a third person who may not have anyt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to pay the price for it as regards confiscation. But sufficient evidence was not brought on record to show that he was connived with or abetted the persons who were involved or played any role in obtaining bogus No Objection Certificate or registration while transferring the said vehicle into his name. Under these circumstances, we feel the benefit of doubt has to be given to the party. In the view we have taken, we uphold the impugned order to the extent of ordering for confiscation of the vehicle but set aside the penalty. 6. Thus, the appeal is disposed of in the above terms. 7. [Contra per: S.K. Bhatnagar, Vice President]. - With due respects to Hon ble Member (Judicial) my views and orders in the matter are as follows : 8. A perusal of the order-in-original shows that at the adjudication stage, the appellant had submitted, inter alia, that he did not contest the confiscation of the vehicle which may be decided on merits (vide paragraph-33). In the Appeal Memorandum also, the main thrust of the appellant s contention was that he had acquired the same vehicle in the normal course in lawful consideration and had neither any knowledge nor reason to believe that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... car was not disputed, there was no justification for absolute confiscation thereof and there was no valid cause for imposition of penalty. 12. The Departmental Representative on the other hand had emphasized during the course of oral hearing as well as written submissions that the vehicle of foreign make was imported under the Garnet-De-Passage/Trip-tyque System at Attari, and the vehicle had been transferred from Calcutta to Chandigarh and to Delhi on bogus and fictious no objection certificates and its discharge was obtained through bogus endorsement and this was clearly proved from the enquiries made from the Transport Authorities at Calcutta, Chandigarh, Delhi and from the Indian Automobile Associations, Bombay and the Delhi Customs Authorities. In short, at every stage, forged documents were used to give the whole deal a legal outlook with the only aim to retain the car in India without payment of customs duty. In the circumstances absolute confiscation was justified. Further, the vehicle was examined and assessed with the help of M/s. Supreme Motors Ltd., Asaf Ali Road, New Delhi in the presence of the appellant, Shri Bal Krishna and was valued at Rs. 1,15,000 approxim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt parts; failing which the provisions of this Order shall apply to such vehicles or components shall be deemed to be goods the imports of which has been prohibited under the Customs Act, 1962 (52 of 1962): Provided that nothing in these exceptions shall prejudice the application to any goods of any other prohibition or regulation affecting the import of goods that may be in force at the time such goods are imported. 18. Therefore, once the vehicle was not re-exported and the conditions subject to which the above exemption was granted were not fulfilled it was no longer saved from the requirement of the import licence/C.C.P. and payment of the customs duty. The net consequence of violation of the conditions of the Garnet-De-Passage or the Triptyque was that the vehicle became liable to confiscation and the importer became liable to pay duty and penalty. The learned Collector was therefore fully justified in confiscating the vehicle. The appellant has also not challenged the confiscation as such, but insisted that instead of absolute confiscation only conditional confiscation with an option to redeem the same ought to have been given. However, the importation of the vehicle b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the difference of opinion between the Member (Judicial) and the Vice President, the matter is submitted to the Hon ble President for reference to a third Member on the following point: Whether in the facts and circumstances of the case, imposition of penalty on the appellant was justified or not. [Order per: K.S. Venkataramani, Member (T)]. - Arguing on the point of difference. ld. Counsel, Sh. Harbans Singh, submitted that the charge against the appellant in the show cause notice and the finding of the Collector in the impugned order is that there has been his connivance in the illegal import of the car in which case Sec. 112(a) of Customs Act, 1962 is relevant. But the ld. Counsel urged no evidence has been led to show that appellant knew Mr. Wolfgang, who imported the car or that the appellant had forged any document relating to the car. Ld. Counsel argued that the finding that the appellant had apparently not taken certain precautions while purchasing the car cannot be the basis for holding that there has been his complicity in the illegal import of the car and at the time of its import. 23. Sh. M.M. Mathur, ld. JCDR contended that in this case the nature of goo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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