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TMI Blog2002 (9) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... isuse of Transfer of Residence facility in respect of goods imported by one Murugesan Chinndurai (M. Chinnadurai) of Ogalur, officers of DRI visited Ogalur and found that no person by that name lived in Ogalur. Since cargo intimation sent to the appellant was returned as the address could not be located, his contact number was obtained from Dubai where he was employed. However, one Bernard Raj responded and stated that the consignment was actually meant for him and not for M. Chinnadurai. The said Barnard Raj also gave the possible time by which the cargo would be cleared. On 23-9-98 Bill of Entry and Baggage declaration were filed with the Tuticorin Customs. The DRI officers summoned the person who filed the said documents and who gave his name as M. Chinnadurai. Statement was obtained from the said Chinnadurai on 23-9-1998 and 24-9-1998 wherein he stated, inter alia, that he was working in Dubai from 10/93 as labourer on a monthly salary of 600 Dirhams with M/s. Besco International owned by Shri Bernard Raj and he came to India in May, 1998 and he did not have any savings in the bank, did not purchase any car at Dubai and he neither knew driving nor was he having any driving lice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cargo and imposition of penalty of Rs. 2.5 lakhs on him while the other appellant Barnard Raj challenges the impugned order imposing penalty on him. 4. Shri S.S. Radhakrishnan, learned Counsel appeared for the appellants and submitted that the cargo has been brought as unaccompanied baggage. He further submitted that in terms of the provisions of Section 2(26) of the Customs Act, 1962, to be an importer, there is no legal requirement that one should be the owner of the goods. He has further submitted that in terms of Public Notice No. 3(PN) 1977-2002, dated 31-3-2002 the appellant is entitled to import a car and other goods as unaccompanied baggage. There is no stipulation either in this Public Notice or in the Customs Act, 1962 or in the Baggage rules with regard to any condition of ownership of the goods for the purpose of importing them under the TR Rules. So far as the car is concerned, what is required is that it should have been in the use of the person coming under the TR. He also invited our attention to Notification No. 137/90, dated 20-3-90 according to which goods falling under 98.03 can be imported at a concessional rate of duty of 25% ad valorem by a person who has g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Jaiswal v. Collector reported in 1994 (71) E.L.T. 352 (Cal.) wherein it was held that use of the car is established by ownership or possession. (f) P.K. Mathew Varghese v. Commissioner reported in 1999 (107) E.L.T. 686 (T) wherein it was held that public notice does not say about the minimum use of the car by way of KMs run, and what it says is only that the car must have been in the use of the importer. (g) K.R. Ahmed Shah v. Additional Commissioner of Customs, Madras reported in 1981 (8) E.L.T. 153 wherein it was held that if the declaration made by the petitioner regarding the contents of the goods under Section 77 was without any hesitation and bona fide it cannot be said that the petitioner had committed any offence under the Customs Act, 1962. (h) CCE, Chennai v. HMM Ltd. reported in 1995 (76) E.L.T. 497 (S.C.) wherein it was held that penalty not imposable unless the department is able to sustain its demand show cause notice which was under challenge on the ground of limitation. (i) Gajanan Visheshwar Birjur v. UOI reported in 1994 (72) E.L.T. 788 (SC) wherein it was held that show cause notice as well as order must be specific to the nature of vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny costly articles like TV, Refrigerator or Washing Machine etc., leave alone owning a costly car. The cargo was imported in his name by his employer Shri Bernard Raj and the fact is that he did not know what the cargo contained. Alter arrival of the Cargo, he had been asked to put his signature on various papers given by the Advocate to whom he was taken by his brother Karuppiah and another person by name Venu for the purpose of clearance of the goods. We observe that the appellant was an illiterate labourer working abroad and sharing a room with 15 labourers and on repatriation his services were utilised by his previous employer for the purpose of illicit export of the goods. The appellant (Chinnadurai) disowned the cargo and stated that the owner of the cargo was Bernard Raj who was his employer. The statements of this appellants regarding ownership of the cargo was corroborated by various other persons from whom also statements were recorded by the officers. Bernard Raj, the other appellant herein, was the brain behind using the name and services of this illiterate person for export of his very costly car and other household articles. Though he (Bernard Raj) disowned the articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c the car should have been in the use of the importer for more than a year prior to his return to India. In the present case, it is an admitted fact that the engine capacity of the car Land Rover Five doors, seven scats is more than 1600 cc valued around 25 lakh rupees. The learned Counsel also cited the decision of the Tribunal in the case of Gandra Ashuvanth Rao v. CC, Cochin reported in 2000 (122) E.L.T. 791. That was a case where the capacity of the car imported was more than 1600 cc and the person concerned had stayed abroad for more than nine years and the plea raised before the Tribunal was that the redemption fine imposed was 100% of the CIF value which was excessive and sought to be reduced and there was no challenge as regards the claim under the ITC Policy. Therefore, it goes without saying that use of the car for more than a year abroad is a necessary condition and so also use of the car by the importer. This condition is admitted by the appellant in para 3 of the grounds of appeal wherein he has stated As far as the car is concerned, it is enough, if it was in the use of the person coming under the TR rules . In the present case neither the car nor the other goods w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there was no smuggling of goods. In the case of KR Ahmed Shah (supra) there was a bona fide declaration and there was a request for re-export and it was held that the person concerned was not guilty of violation of Section 111(d). The case of Mahamoodali Umravalli Sayed (supra) dealt with a case where there was inability of the passenger to give model number or colour of the item and it was held that confiscation of the goods was not warranted. The facts in the case of CC, Kandla v. PK Mathew Varghese was that the owner of the car did not know driving and he also did not disclose the source of income and the authorities denied the benefit of ITC Policy No. 202/92-97 and the Tribunal held that public notice does not prescribe minimum extent of use. The said policy however did stipulate a condition in the use of the importer for more than a year prior to return to India . In the case of MK Elumalai v. CC, Madras reported in 1994 (74) E.L.T. 742, decided by a Single Member Bench of the Tribunal, the facts were different as in that case TR concession has been given to all items except Air-conditioners and Video Cameras and it was held that confiscation of those items on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the show cause notice did not specifically point out as to which of the various commissions or omissions stated in the proviso to Section 11A(1) of the CE Act have been committed. The other case law relied upon by the appellant is in the case of Gajnan Visheshwar Birjur reported in 1994 (72) E.L.T. 788 (S.C.) wherein it was held that the show cause notice as well as the order must be specific as to the nature of violations. We have gone through the show cause notice as well as the impugned order and we find that the show cause notice vide Para 23(2) has specifically invoked the provisions of Section 112(a) of the Customs Act, 1962. The order impugned has also vide Para 2(a) of the order portion has cited the specific Section under which penalty has been imposed. As regards the complicity of the appellant in the commission of offence, the same has been brought out above. Therefore, we find no merit in the plea of the appellant that penalty cannot be imposed on him. 9. Now coming to the aspect with regard to the quantum of penalty on the appellants, so far as appellant Chinnadurai is concerned, we have already held that he was a poor labourer working abroad and his name a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only condition of the notification is that the goods should have been in possession of the passenger who brought the same. He contended that the above facts whether the vehicle was in the possession of the appellant is proved by Bill of Lading and the declaration filed. The burden to prove that goods were not in the possession of the appellant is squarely on the department which, according to the Counsel, has not been discharged even remotely. The statements recorded by DRI officers have no validity as they were against the real facts. The statement had been taken under threat and coercion which has been retracted by the appellant. He also contended that financial status cannot be questioned as has been laid down in the Ministry s letter with regard to importation of gold and other items so long as duty is paid. He ultimately prayed for an order for release of the case. He also relied on the judgment of this Bench rendered in Gandra Ashuvanth Rao v. CC, Cochin, 2000 (122) E.L.T. 791 by which the Bench directed for release of the car on the reduced redemption fine and penalty in line with the quantum adjudged in other similar cases. Ld. Counsel pointed out that the facts in the cite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered opinion that the matter is required to go back to the Commissioner of Customs for consideration of release of the car on the grounds made out, in view of judgments laid down referred to by the Counsel. Further there is lot of force in the Counsel s argument which are tenable and in keeping with the provisions of the Transfer of Residence Rules and the notification cited. It is now well settled that Customs officers cannot question the means of purchase by the passenger. The Bill of Entry had been filed by Chinnadurai and had claimed the ownership and the declaration in the Bill of Lading also stood in his name. He has shown that the car was in his possession and use. The Tribunal has in similar circumstances, where there was imposition of 100% fine, reduced the same and directed the car to be released on a lesser fine of Rs. 3 lakhs as in the case of Gandra Ashuvanth Rao v. CC, Cochin (supra). In an identical situation, the Tribunal negatived the department s plea and ordered for release of the case on payment of reduced RF. The department in that case had granted release of the car on payment of fine, while in the present case, the car has been absolutely confiscated whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e hearing the appellants. Appeal is allowed by remand on the above terms. Sd/- (S.L. Peeran) Member (J) POINTS OF DIFFERENCE In view of difference of opinion between the Members, the following arises for determination by the Third Member : - Whether the claim of the appellants for release of the car is required to be rejected and the car is to be absolutely confiscated as held by Member (Technical) including imposition of penalty on them on the quantum fixed by Member (Technical) Shri Jeet Ram Kait ; (OR) the appeal is required to be remanded to Commissioner of Customs for de novo consideration to consider the prayer for release of the car as held by Member (Judicial) Shri S.L. Peeran in his order. Sd/- (Jeet Ram Kait) Member (T) Sd/- (S.L. Peeran) Member (J) [Order per : P.G. Chacko, Member (J)]. - A difference of opinion has arisen between ld. Member (Technical) and Ld. Member (Judicial) on the question whether the car imported by Shri Chinnadurai from Dubai and sought to be cleared at Tuticorin Port under Bill of Entry No. 778A, dated 23-10-98 is liable to be absolutely confiscated under Section 111(d) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd is suggestive of abetment on the part of Shri Bernard Raj. He submits that, going by the preponderance of evidence, one could easily find that it was Shri Bernard Raj who was really interested in the property of the car and facilitated the importation thereof into India. For such abetment, the penalty imposed on Shri Bernard Raj by the adjudicating authority under Section 112(a) of the Act has to be sustained. 22. Having examined the records and submissions, I find that the point of difference arising before me as 3rd Member lie in a narrow compass in view of the provisions of Sections 124 and 125 of the Customs Act. The show cause notice which culminated led to these proceedings was issued under Section 124 for confiscation of the above goods and for imposition of penalties on the appellants. Ld. Commissioner has confiscated the goods absolutely. Apparently, he did not examine the question whether the goods were redeemable under Section 125 of the Act. Section 125 provides that, in the case of goods in respect of which importation or exportation is not prohibited, the adjudicating authority ordering confiscation of the goods shall give the person concerned (owner of the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X
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