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TMI Blog2017 (8) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... der the Transfer of Residence (TR) Rules, 2002 . When the appellants could not come out with clean hands to discard the allegations as well as purchased the offending car imported without any inquiry into the law applicable to such import, they cannot be said to be stranger to the deal. Car imported unlawfully contravening provisions of Customs Act, 1962 become smuggled goods as defined by Section 2(39) thereof. The fraudulent mis-declaration and active as well as conscious involvement not being appreciated, the parties therein got relief. But, in the present case, it is the case of deliberate mis-declaration and commitment of fraud against Customs abusing the benefit of the Transfer of Residence (TR) Rules, 2002 , there shall be no esc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition of penalty of ₹ 3,00,000/- on Shri Gagandeep Singh Anand under Section 112(a) of the Customs Act, 1962. 2. In para 8 of the order of adjudication learned adjudicating authority brought out the summary of the allegations as under: - (A) Shri Kirti Kumar Dholakiya had filed a Bill of Entry No. 290147 dated 2.9.2002 for the import of one Toyota Land Cruiser Prado at the Mumbai Custom House, Ballard Estate, Mumbai. The importer had declared the vehicle as an old and used vehicle of 1997 make and was accordingly subjected to customs duty as applicable to an old and used vehicle of 1997 make. In the year 2002, the customs duty payable on a old vehicle was Basic custom Duty 105% + C.V.D 16% + Special Excise Duty 16% + Cess 0. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Cancellation Certificate No. 01264 dated 12.03.2002, regarding cancellation of the vehicle registration in Japan, both clearing mentioning the model year as 2002, he was well aware that the year of manufacture declared to customs is tampered and incorrect. (E) The vehicle service records of M/s Lakozy Motors Pvt Ltd, New Delhi, clearly reveal that the said Toyota Prado vehicle was in possession of Shri H.S. Oberoi of M/s H.S. Oberoi Co. for the period of September 2002 till March 2005, i.e. immediately after the import of the vehicle and its customs clearance in August - September 2002 till the vehicle was purchased by Shri Gagandeep Singh Anand in March, 2005. 3.1 Investigation noticed that a Luxury Motor Vehicle, brand Toyo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was Indus Trading Co. Ltd., Tokyo, Japan. Investigation accordingly alleged that the vehicle first came from Japan to Dubai and subsequently came from Dubai to India, was not new car but old and used. 4. Investigation sent the vehicle for examination to M/s Lakozi Motors Pvt. Ltd. on 28.9.2006. That concern was agent of the Toyota Vehicle in India. The examination revealed that the Chassis No. appeared to be genuine but Engine No. was manipulated by the importer, which was found to be 5VZ instead of 5UZ. Such results of enquiry was forwarded to Toyota Kirloskar Motor Pvt. Ltd., Bangalore for ascertaining the status of the vehicle, i.e. year of manufacturing, engine no., engine type, chassis no., vehicle model code as well as vehicle name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons, who were connected with the import. 6. Appellant s submission is that there can neither be seizure nor confiscation since the car has already been released. Neither the first buyer nor the subsequent buyers were involved in the import alleged to be made in violation of law. It is further submission of the appellant that if at all there is any violation, it is only the original importer, who is liable to answer to law. Both the appellants were bona fide buyer and the vehicle were registered in their name lawfully. Therefore, there should be no penalty on either of the appellants. So also there is no question of any consequence of confiscation. The appellant Shri Oberoi purchased the vehicle from the importer Shri Dholakia and subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to the summons of the department nor also filed any reply to show-cause. He provided bogus address for which the communication of the investigation could not reach to him. When the real manufacturer in Japan provided the details, these two appellants could not rebut that. The car was imported under scheme called Transfer of Residence (TR) Rules, 2002 . Once there is abuse of the scheme, the undue benefit gained in respect of the vehicle should be restored back to the Revenue as the violation of law was patent, for which learned adjudicating authority has passed right order. 8. Heard both sides and perused the records. 9. It is admitted fact on record that there was deliberate mis-declaration of year of manufacture as well as chass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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