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TMI Blog2010 (10) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 2005 to consider the following substantial question of law : "Whether on the facts and circumstances of the case and in law, the Tribunal erred in holding that the post-importation condition of "no sale for a period of 2 years" stipulated in the Public Notice No. 3 (RE-2000) 1997-2000 dated 31st March, 2000 does not imply that the importer should be owner of the vehicle and hence there is no violation of the provisions stipulated in the Public Notice?" Factual Matrix : 2. The facts, in nutshell, are that one M/s. Gokuldas Hansraj Shipping Pvt. Ltd., CHA filed bill of entry on 13th February, 2001 on behalf of the respondent for clearance of one Toyota Cynos car under transfer of residence, claiming benefit of Public Notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, inter alia; stated that he was from Andhra Pradesh holding Indian Passport No. T-950743 issued by the Passport Office at Hyderabad on 15th March, 1995; that he left for Dubai on 13th April, 1997 and started working there as a Carpenter; that he visited India on 17th November, 1999 and stayed for a period of five months; that he went back to Dubai and, finally, arrived in Mumbai Airport from Dubai for permanent settlement in India; that he had neither used any vehicle in Dubai nor had imported any vehicle in India and explained that after one week of his arrival in India one Tukaram and Srinivas came to him and asked him to permit them to import some light bulbs from Dubai by using his passport; that he agreed to their proposal for moneta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h July, 2004, was pleased to allow the appeal and set aside the order-in-appeal holding that it was neither necessary for the respondent to prove as to how funds were arranged by him nor it was necessary to prove the possession, ownership or user of the subject vehicle in the country of exportation during the period when the passenger/respondent stayed abroad. The order of confiscation and penalty was set aside. Vehicle was directed to be released to the importer after collection of duty assessed thereon. 7. Being aggrieved by the aforesaid order, the Revenue has invoked appellate jurisdiction of this Court to canvass the question of law extracted hereinabove. 8.In spite of notice, respondent did not appear. Mr. S.N. Kantawala was r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r expiry of two years contemplates transfer of title arising from the transaction of sale and purchase. Transfer of title can only be done by a person holding title. Person having no title cannot transfer it to another person. In absence of title, he has no authority to sell or transfer the vehicle in favour of anybody. Under these circumstances, the Commissioner (Appeals) was perfectly justified in holding that the passenger or a person importing vehicle must be the owner of the vehicle for a period of two years during his continuous stay abroad and should continue to be the owner for next two years after importation of vehicle in India. The findings recorded by the Commissioner (Appeals) read as under : "(v) Contrary to the Ld. Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal also suffers from non-application of mind since the Tribunal has directed release of vehicle after collection of duty assessed thereon forgetting the fact that as per the public notice, payment of full duty was a condition precedent and that the duty was duly paid by the importer. In the totality of the circumstances, the Tribunal ought to have used its common sense that a person working as carpenter/labourer in Dubai could not have owned or imported vehicle, that too from Japan, especially, in the light of his statement recorded under Section 108 of the Act; wherein he has clearly admitted that his passport was misused by someone. It was clearly an attempt on the part of the Tribunal to adopt perverse approach. The impugned order is, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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