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TMI Blog2007 (6) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, the importer gave a statement under Section 108 admitting that he had nothing to do with the import of the car but, gave his passport to his friend Shri Afeel who was not traceable. He also gave a letter abandoning the car. As the import of the car is in violation of the Import Policy, it was liable for confiscation under Section 111(d) of the Customs Act, 1962 read with Section 3(3) of the Foreign Trade (Development Regulation) Act, 1992. In the absence of legitimate owner or claimant of the car, the Commissioner passed the impugned order dated 15-5-2006 ordering absolute confiscation of the Car. Shri Abdul Basheer Vaniya approached the Hon ble High Court of Kerala by way of a Writ Petition challenging the confiscation of the car by the Commissioner. Initially, the Single Judge who heard the matter directed the appellant to seek his ordinary and statutory remedy. He sought review of the above mentioned order and the Review was also dismissed on 28-8-2006. Afterwards, the appellant approached the Division Bench. The Division Bench, while dismissing the Writ Petition, made the following observations :- 2. Before, however, we may part with this order, we would like to men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of the car under import. Such a plea vis-a-vis proviso to Section 23(2) had also been before the Hon ble High Court of Kerala and the issue had been relegated to this Tribunal. Merely because the appellant had given a statement under Section 108 of the Customs Act, 1962 does not in any way mean that he has relinquished the title of the goods. (vii) The car has been imported in terms of negotiable documents such as Bill of Lading as per International Maritime Law and relinquishing of title pre-supposes that the said Bill of Lading is officially surrendered to relinquish such title. (viii) The appellant had not been given a reasonable opportunity under Section 124 of the Customs Act, 1962. Even before the date of Show Cause Notice to the appellant proposing penal action, the lower authority passed an order of confiscation of the car absolutely. Even a copy of the confiscation of the order has not been supplied to the appellant. (ix) As the appellant has been deprived of the imported car and proprietary rights, the sale proceeds of the car or just compensation has to be given to the appellant. (x) As regards the impugned Order-in-Original No. 35/2006 dated 06- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 108 of the Customs Act 1962. According to which it is understood that I am bound to give a correct statement. I understand that the statement can be used against me or any other person as evidence in any legal proceedings. I also understand that giving a false statement is an offence punishable under the India Penal Code Section 193. My name and address is as stated above. For the last 10 years I have been working in UAE. For the last 3 years I was working in Albhadha in a Motor Cycle Company. I have studied upto 10th class. I can read and write English as well as Malayalam. In my house, I am staying with my father, mother, 4 sisters and brother. Out of this, 3 sisters are married. In June 2005 I cancelled my visa and came back to my native place. Within 10 days of that my friend called me and demanded my passport. He told that it is required for sending some cargo in my name. I had handed over the passport to him due to the reason that he was my friend. Since my friend had helped me a lot earlier, I have not mentioned about the cash. After few days Affeel called me in my phone and told that a letter will come. As per that I got a letter from a shipping company in Kochi in Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinuous stay abroad are allowed to bring a car without licence provided the car has been in the possession of the individual for a period of minimum one year abroad. After going through the statement of the appellant, it is very clear that he can neither be considered as the importer nor as the owner of the car. Just because the appellant filed a Bill of Entry, he cannot be considered as owner in the light of his own admissions. Whether a person is to be considered as importer or owner depends upon the facts and circumstances of the case and also upon the records in evidence. The appellant is referring to proviso to Section 23(2) of the Customs Act, which has been extracted in para 3(x). In our view, that proviso will not at all be applicable to the appellant who has nothing to do with the car. First of all, the appellant who has nothing to do with the car, gave a letter saying that he was abandoning the car. Even that letter has no meaning. Abandoning implies originally the ownership rests with the person. Here, even by the own admission of the appellant, he has nothing to do with the car. Later, he cannot complain that no notice was given to him before confiscation and also befor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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