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TMI Blog2003 (9) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that the Directors of the firm had unauthorisedly imported a car in the name of the respondent. The statement of the respondent who filed Bill of Entry on 31-5-2000 for clearance of the car, was recorded wherein he admitted that the car was neither purchased nor booked by him and that Shri Aditya Singh of M/s. Quality Apparel Exports Pvt. Ltd. had taken his passport and booked the car in his name and signed some papers for its clearance. He also admitted that the duty amount payable on the car was provided to him by Shri Aditya Singh who had also offered Rs. 25,000/- as consideration amount towards the import of car for him. The statement was subsequently retracted and the respondent stated that he was a man of means, having been employed in Dubai with J.W. Marriott Hotel from August, 1993 to December, 1999 drawing a basic salary package of AED 6250 per month and had also received a severance package of AED 16720 on completion of his contract with the Hotel in 1999 and that he has purchased the car from a used car dealer in Karama used car market in Dubai. The Department alleged that the car was unauthorisedly imported in contravention of the restriction imposed under Import Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0-6-2003 4. [Contra per : C. Satapathy, Member (T)]. - I have carefully considered the order recorded by my learned Sister. In this case, the appeal and the stay application have been filed by the very same Commissioner, who had himself earlier passed the impugned order, in pursuance of Board s Order in Review No. 14-R/2003, dated 22-1-2003 holding the impugned order to be not legal and proper. I have also carefully considered the reasons adduced in Paragraphs 7.1 to 7.15 of the said Order-in-Review which I reproduce below for better appreciation of the case :- 7.1 The Commissioner ought to have considered that Shri Gangaram Pandurang Kerkar in his statement dated 22-8-2000, inter alia deposed that he neither purchased nor booked the Car Toyota Land Cruiser and he had nothing to do with the said car and that Shri Aditya Singh had taken his passport and booked the said car and an accompanied baggage in his name (Shri Gangaram Pandurang Kerkar). The Commissioner ought to have considered that as deposed by Shri Gangaram Pandurang Kerkar, Shri Aditya Singh was taken to M/s. Saidutt Clearing Agency and Shri Gangaram Pandurang Kerkar signed some papers on the instructions of Shri Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... papers and declaration dated 3-9-2002 confirming the fact that the loan to Shri Gangaram Pandurang Kerkar was paid out of their Export Inward Foreign Currency remittances and he also produced the copies of the bank proof, wherein an amount US $ 2,18,787/- was sent by M/s. Nirvana Trading Company LLC, Dubai as export proceeds. Shri Shoaib Mohd. Ali Sequeira alias Richie deposed his statement under Section 108 of the Customs Act, 1962 in the office of the Consulate General India, Dubai, U.A.E., wherein he inter alia deposed that he has remitted approximately US $ 35,000 to M/s. Quality Apparels Exporters Pvt. Ltd. and this was the only amount remitted by him and this amount was not against any particular invoice or consignment. The Commissioner ought to have taken into consideration that the documents pertaining to the car were taken over from the office premises from M/s. Quality Apparels Exporters Pvt. Ltd. The Commissioner ought to have considered that in the NRI account of Shri Gangaram Pandurang Kerkar there were hardly any amount remitted in his NRE account. The Commissioner ought to have also considered the facts deposed in the statement of Shri Jairaj Anandan (maternal uncle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- was importing and maintaining a vehicle worth more than Rs. 25 lakhs. It is also inconceivable that any employer would give such huge loans to an employee, who is working only for the previous four months. These facts clearly show that Shri Kerkar was used as a pawn by Shri Aditya Singh to import the vehicle and the Commissioner failed to see through lack of explanations from the importer and Shri Singh at the time of adjudication, in this regard. 7.7 The Commissioner failed to appreciate the fact, that a person, working in a seven star hotel for six years drawing salary of AED 6,250/- per month (about Rs. 75,000/-) in Dubai, was now working for a meagre salary of Rs. 3,500/- with Shri Aditya Singh. The Commissioner failed to appreciate the fact that Shri Kerkar failed to produce any documentary evidence to substantiate his claim of drawing a salary of AED 6,250 per month for six year or the severance package of AED 16,720/-. In absence of evidence, the Commissioner ought not to have believed the oral statement of the importer and ignored other corroborating evidences, which point to the usage of the passport of Shri Kerkar for import of the vehicle in the name of Shri Singh. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the same. 7.12 The Adjudicating Authority while commenting on the statement of Shri Jayraj Anandan, failed to take note of the fact that Shri Jayraj Anandan is the maternal uncle of Shri Randhir Singh who is a Director of the exporting firm M/s. Quality Apparel Exporters Pvt. Ltd., of which Shri Aditya Singh is another Director. Thus Shri Jayraj Anandan would attempt to safeguard the interest of Shri Aditya Singh, howsoever clumsy his statement may seem that his power of identification of a person depends on the place of meeting. The identity of Shri Ari is irrelevant to the case, which deals with the import policy violation and not the Foreign Exchange management. 7.13 The Adjudicating Authority failed to appreciate the fact that blank sale deed and mortgage deeds were found in the possession of Shri Aditya Singh, which clearly indicates the link of Shri Aditya Singh in the import. The intention in the DGFT Public Notice to prohibit sale of vehicle was clearly to prevent even such clandestine sale of the vehicle. 7.14 The Adjudicating Authority overlooked the plethora of evidences linking Shri Aditya Singh with the import of the vehicle viz. (i) Blank Sale Mort ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the scheme for import of cars. I am of the opinion that the cited decision of Hon ble High Court of Bombay rendered in the context of another scheme for import of gold and silver cannot be applied in this case. 7. I am, therefore, of the prima facie view that though Shri G.P. Kerkar has held himself out to be the importer, he cannot be allowed to import the impugned car not having satisfied the ownership condition which is implied in the impugned Public Notice. As a result, I am of the opinion that the impugned order requires to be stayed to prevent release of the car to an ineligible person. 8. However, since my opinion is different from that of my learned Sister, the matter may be referred to the Hon ble President in terms of sub-section (5) of Section 129C of the Customs Act, 1962. Sd/- (C. Satapathy) Member (Technical) Dated : 14-7-2003 9. The following difference of opinion is referred to the Hon ble President for reference to 3rd Member :- Whether the stay application of the Revenue is required to be rejected, as proposed by Member (Judicial) or Whether the application is required to be allowed as held by Member (Technica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from M/s. Quality Apparels Pvt. Ltd. does not establish that the respondent was only a name lender for Shri Aditya Singh in view of the fact that the respondent did not claim that he had purchased the car from M/s. Dollar Auto but from a used car dealer in Karama used car market in Dubai. The respondent also undertakes not to dispose of the car pending the appeal, and further undertakes to produce it for inspection by Customs, if called upon to do so. In the light of the above, the plea of the Revenue that the car is liable for absolute confiscation and that the Commissioner s order should be stayed as otherwise the car will be released to the respondent, is not prima facie tenable. No satisfactory ground has been brought out for exercise of our inherent powers. We, therefore, reject the stay application. He further drew my attention to the following provisions of the Policy PN-3 (RE-2000)/1997-2002, dated 31-3-2000 for import of car :- Para 28. 1. In exercise of powers conferred under Paragraph 4.11 of the Export and Import Policy 1997-2002, and in suppression of Public Notice No. 3(PN/97-02), dated 31-3-1997, as amended from time to time, the Director General of Foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31 of the Order-in-Original, which are reproduced as under for the sake of reference :- 30. However, in the Show Cause Notice, the name of the person who has issued the cheque has not been mentioned. Further, even the name of the beneficiary in whose favour the cheque has been issued, has also not been mentioned. It has not been ascertained whether the cheque was issued from Indian branch or overseas branch of a bank and whether the bank was Indian or of any foreign country. To prove that the hawala transaction is involved in the purchase of car, all these aspects should have been investigated in detail as these are very important factors to establish that some sort of adjustment has been made by Shri Aditya Singh and Shri Richie or any such other person in Dubai for collection of amount in India and its illicit transfer to Dubai through hawala channel or else this should have been established beyond reasonable doubt that Shri Richie has made adjustment from the export proceeds due to M/s. Quality Apparel Exporters P. Ltd. on account of their exports consignments imported by his firm M/s. Nirvana Trading Co. L.L.C., Dubai. 31. Here it is important to establish that remittance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and thus any violation on this account does not appear to have taken place. Here, it is noticed that based on suspicion investigation can be initiated but based on suspicion nobody can be held guilty of committing any offence. Suspicion provides scope for investigation and investigation has to convert the suspicion into definitive facts. Here, the investigation does not appear to be complete and conclusive as the circle is broken in between in the form of Shri Arif who has not been identified so far. There is a plethora of judgments wherein tribunals held that conviction can not be based on mere suspicion. In case of Tayyab Junus Khatri v. Commissioner of Customs (Prev.), Mumbai [2002 (139) E.L.T. 433), Chandrakant U. Shah v. CC [2000 (123) E.L.T. 730], and Jatin Mehtra v. CC [2000 (120) E.L.T. 108]. Tribunal has held that although the strong ground for suspicion notwithstanding, suspicion could not take place of conviction. In case of Sanjay Dhawan v. CC. Delhi [1998 (103) E.L.T. 565-Trib] Tribunal has held that benefit of doubt is extendable to petitioner in absence of clinching evidence of connivance or collusion. Further in support of his contention he relied on the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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