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TMI Blog2003 (1) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... 35,71,180 as Customs duty and got the car registered in her name with registration No. KL-03-D-9810. (b) The DRI consequent to an intelligence, launched an enquiry, recorded the statement of Dr. Pillai, her husband searched certain alleged premises of Alex the investigations made by them revealed that the said vehicle had been imported into Dubai on 29-9-98 by air vide Gulf Air Flight DF 0508 from London and was cleared vide Customs Bill (for re-export) No. 11-1-2-04098504 dated 30-9-98. As this made it evident that the registration certificate filed by the importer i.e. Dr. Pillai was false and that the said vehicle was not in her possession for the required period of one year, prior to importation thereof, a CMP (No. 18107 of 1999) was filed by the Directorate of Revenue Intelligence before the Hon ble High Court of Kerala seeking that the importer should be directed to produce the vehicle for seizure. In these proceedings, she, filed a counter-affidavit stating that the vehicle was sent to London on 6-6-98 for repair and that the document submitted by the Directorate of Revenue Intelligence, was the one which covered the re-entry of the vehicle into Dubai after repair in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signee had not paid an amount of 3485 Pound Sterling and had also claimed compensation. It also came to light that the said Alex had asked M/s. V P Cars, London to collect original Registration Certificate vide his fax message dated 30-9-98. Stating these facts an affidavit was filed before the Hon ble High Court of Kerala. Ernakulam seeking that the importer may be directed to produce the said vehicle and that the Directorate of Revenue Intelligence, be permitted to seize the same. (e) Dr. Pillai as the importer vide her letter dated 23-6-2000 enclosed the vehicle clearance certificate 28521 for import of the said vehicle vide B/E No. MO/R/1997/19077, dated 5-3-97, Bill of Lading No. DXB/LON/785, dated 27-6-98 of M/s. Golden Line Dubai, UAE for shipping the said vehicle vide container No CAXU 2285610 in vessel KAMAKARA 56EE24 from Dubai to Southampton and a certificate from VP Cars. (f) Since cars and other vehicles for the transport of passengers fall under the category of restricted items and are permitted to be imported only under a specific licence issued or as per the provisions of the Public Notice issued in this regard, ITC P N 3/97-02, dated 31-3-97 has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the business of sending cars of foreign origin into India in the name of passengers coming from abroad and who has been involved in may cases registered under the Customs Act, 1962 involving import of cars in the name of non-resident Indians had emerged as the main person behind the illegal import of the said vehicle; that he had induced Dr. Asha Sivasankara Pillai on promise of monetary consideration to give a copy of her passport for the purpose of allowing him to import the vehicle in her name; that Alex C Joseph asking M/s. V P Cars, London to collect the original Registration Certificate of the vehicle vide his fax message dated 30-9-98, his non-response to the summons and the recovery and seizure of the copy of passport of Dr. Asha Sivasankara Pillai from the residence of Alex were pointers to the role of Alex in the import of the vehicle; that Shri Alex C Joseph has imported the vehicle under seizure into India, which has been rendered liable to confiscation under Section 111 of the Customs Act, 1962 in as much as it was imported in the name of Dr. Asha Sivasankara Pillai without a valid import licence in contravention of the above mentioned ITC PN issued under Section 3(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said statement was taken under threat, duress and coercion does not appear to be genuine. Moreover, it is seen that the statement has been retracted only on 2-2-99, after a period of 18 days. Had the statement indeed be taken under duress, in the normal course the importer would have retracted the statement in the very next opportunity available. No justifiable reason has been given by the importer as to why the retraction was made after a period of 18 days. Hence it is clear that the retraction is only an after thought and cannot be accepted. 28. It is also seen that, Shri Gopalapillai Narendranath, husband of Smt. Asha Sivasankara Pillai, had given a statement under Section 108 of the Customs Act, 1962 before the DRI officials on the same day. In his statement he has admitted that the car imported in his wife s name did not belong to her and that the same, had been sent by Alex. He also stated that one person by name Mohan, who was a friend of Alex, had collected his wife s passport from their residence. Shri Gopalapillai Narendranath has also stated that they were using two Honda cars in Sharjah, which were purchased in 1985, and that of the two cars, one was sold by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... genuineness of these documents are clearly in doubt and the same cannot be accepted. Moreover the statement of Smt. Asha Sivasankara Pillai is in her own handwriting. 30. During the search conducted by the DRI officials at the residence located at Building No. IV/181 of Thiruvalla Municipality, a photocopy of the passport belonging to the importer was recovered among other items. Shri Alex has stated that the said premise belongs to his sister and he had shifted his telephone from his office to her house. Thus it is clear that the photocopy of the passport belonging to the importer that was recovered from the residence had been kept there by Shri Alex only. This corroborates the statement given by the importer and Shri Gopalapillai Narendranath that the passport of the importer had been collected by a person named Mohan on behalf of Alex. Thus the nexus between Smt. Asha Sivasankara Pillai and Alex in the import of the car is established. 31. Thus from the statements given by the importer, Smt. Asha Sivasankara Pillai and by her husband, Shri Gopalapillai Narendranath, on 14-1-99 and from the recovery of the photocopy of the passport of the importer from the reside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in his reply to the show cause notice that the building belonged to his sister and not to him. However he has further stated that on closing down his office he had shifted his telephone to his sister s house, as he did not have a house or an office there. From his own submission it is evident that when he has shifted his telephone to his sister s house, on closing down his office, he naturally would have transferred any documents/materials that were in his erstwhile office to his sister s house. Thus it is evident that the copies of passports recovered from the residence was kept there by Shri Alex C Joseph only. The contention made by him that the same were planted by the DRI officials cannot be accepted at all as the same is not at all possible since it is evident from the records that the search had been conducted in the presence of the Thiruvalla Police Officials and independent witnesses. 35. In the representation made by the Counsel for Shri Alex C Joseph, at the time of hearing, various case laws have been quoted stating that it is unsafe to punish any one solely on the confession of a co-accused and that a retracted confession must be looked upon with greater concer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g confidence in the mind of the adjudicator that the statement reveals the entire truth stands glaringly uncorroborated. A perusal of the statements, indicates, if at all it implicates, Shri Alex in any manner, is that Dr. Pillai and her husband took the assistance of Shri Alex for clearance of the subject car, which in itself cannot be considered to be a reason to invoke liability for confiscation of the car under Sections 111(d) and 111(m) as arrived at for the visit of a penalty under Section 112(a) of the Customs Act, 1962. (b) The Commissioner vide para 29 of his finding, has rejected the documents filed by Dr. Pillai, as regards the evidence, of the car, having been sent to Southampton U.K. from Dubai for repairs, on the ground that these documents were not produced before the investigating agency. The Show-cause notice at no stage has disclosed that these documents, which indicate that the car was sent to Southampton for repairs, as claimed by Dr. Pillai during the hearing and in the proceedings before the Kerala High Court, were asked for by the investigators at any stage. These documents have been produced by Dr. Pillai, at the first available opportunity without de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfiscation and or penalty under Customs Act. As regards Dr. Pillai s contention that the Photocopy of her passport which was recovered from Shri Alex s Sister s residence was planted there by DRI Officers, from the Mahazar dated 17-9-99 Drawn at the alleged residence of the sister of Shri Alex it appears that the Mahazar started on 16-9-99 at about 4.00 PM when the Senior Intelligence Officer, DRI, Cochin and party went to the relevant Police Station seeking Police assistance for conducting the search, as the said home was found locked. A Blacksmith appears to be called and the doors were opened with his assistance. Mahazar does not record the search Authorization No. issued by the Assistant Commissioner nor it indicates who was the officer who has authorized search of the said premises. The premises were an incomplete one. During the search only one car of foreign origin not impugned herein, and certain documents including photocopies of the alleged passports of Dr. Pillai were recovered. The Mahazar does not show from where the photocopies were recovered. The Mahazar shows that it started at 4.00 PM on 16-9-99 and was completed by 9.00 AM on 17-9-99. The entire proceedings app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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