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TMI Blog2015 (4) TMI 1198X X X X Extracts X X X X X X X X Extracts X X X X ..... Rehman Shaikh has resorted to mis-declaration by importing a used vehicle in the guise of a new vehicle. Accordingly, in view of the violation of the provisions of Section 7 of Foreign Trade Development Regulations Act, 1992 read with Rule 2(c), & 12 of Foreign Trade (Regulations) Rules, 1993 and Para 2.12 of the Foreign Trade Policy and also taken notice of the contumacious fraud committed by the said Shri Rehman Shaikh by importing a prohibited vehicle (second hand vehicle and/or used vehicle), the absolute confiscation of the vehicle in question is upheld. - Since the importer have been made in contravention of the import value policy and licensing note, the impugned vehicle clearly falls within the category of prohibited goods as defined under Section 2(33) of the Customs Act, 1962 and as such was liable to confiscation under Section 111 (d) of the Customs Act, 1962 and liable to be absolutely confiscated under the provisions of Section 125 of the Customs Act, 1962 Appeal dismissed - decided against appellant. - C/108/2012-[MUM] - A/89183/17/SMB - Dated:- 29-4-2015 - Mr. Anil Choudhary, Member (Judicial) Shri P. A. Augustian, Advocate, for Appellant Shri S. J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00/- were found. The documents were found in cash were taken over under Panchnama for further enquiries. The office premises of Shri Rehman Shaikh was also searched on 10/09/2008. During the search large number of incriminating documents including blank invoices of certain companies/ firms stated to be situated in UAE (Dubai, Sharjah) and Japan, etc. were found. All the said documents were taken over under Panchnama dated 10/09/2008. 4. The statement of Shri Rehman Shaikh was recorded on 10/09/2008 under Section 108 of the Customs Act, 1962 wherein he inter-alia stated that he imported vehicles from UK where his contact persons were Yusuf Poonawala, Jeff, Jaaz and Sunny. We contacted various customers in India, either directly or through brokers and after confirmation of the order, he placed with the suppliers. The vehicles sent by his UK suppliers were generally the vehicles which were auctioned by the finance companies. He used services of Customs House Agent (CHA) - M/s A. B. Consultants. The recent vehicles imported by him which were pending clearance which included (a) Range Rover 3.6, (b) Mercedes CLS 320 CDI, (c) Mercedes S 320, (d) Toyota Land Cruiser 3.6, and (e) Toyota ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sport No.G4313083 in the name of Zubair Ahmed Mohammad Hanif. (b) copy of Pan Card No. AKHPA3318E in the name of Zubair Ahmed Mohammad Hanif. (c) Copy of identity Card No.HPK2706554 issued by Election Commission of India in the name of Zubair Ahmed Mohammad Hanif. (d) 2 nd Original Copy of Bill of Lading No.YOKNSA080000001 dated 01/08/2008 issued by Kyoei Transport Co. Ltd. as agents for the Carrier - PIL, (UK) Ltd in respect of Container No.TTNU2592442 said to contain one unit of Toyota Alphard consigned to Zubair Ahmed, Mumbai 70 (e) Invoice No.UTCL/UN019 dated 21/07/2008 of M/s World Wide Showa Tsusho Co. Ltd. In favour of Zubair Ahmed, Swadeshi Mills Company Chawl No.32, Room No.62, Kurla, Mumbai - 400 070, for sale of one unit of Toyota Alphard used, for USD 15,800. 8. Summons were issued to Shri Zubair Ahmed wherein his father stating that his son Zubair was in garment business and had gone to Coimbatore on a business tour and was expected to return towards the end of the month and thereafter he would appear before the Customs Authority/DRI Authorities. In the meantime, reference was made to M/s Toyota Kirloskar Motor Pvt. Ltd., Bangalore under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as issued to the Deputy Commissioner in-charge, Disposal Section, JNCH, Nhava Sheva. 10. Shri Zubair Ahmed was located at his residence on 16/10/2009 and was summoned to the DRI office on which date his statement under Section 108 of Customs Act, 1962 was recorded wherein he inter-alia stated that - he used to work as a driver for Shri Rehman Shaikh during the period February, 2008 to July, nos. Shri Rehman him a sum of ₹ 20,000/- for lending his name for import of a vehicle, in his name. Accordingly, he gave his original passport, pan card and voter identity card to Shri Rehman Shaikh, Later he learnt that one Toyota vehicle had been imported in his name by Shri Rehman Shaikh as his signatures were taken on some papers, including form for opening account in the bank, he had not purchased or seen the vehicle, which had been imported in his name. He had never travelled abroad or stayed abroad at any time. Shri Rehman Shaikh was dodging him on one pretext or the other when he demanded return of his passport, pan card etce. and money promised to him. Shri Rehman Shaikh has not paid him any money nor had returned his above documents so far. Vehicle Toyota Alphard did not bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and clearance of the impugned vehicle, in violation of provisions of Rule 11, 14(1) 14(2) of the Foreign Trade (Regulations) Rules, 1993. 12. Shri Zubair Ahmed appears to have lent his name in furtherance of the dubious designs of Shri Rehman Shaikh which led to the fraudulent import of the impugned vehicle. Shri Zubair Ahmed in collusion with Shri Rehman Shaikh appears to have done acts or omitted to do acts or has abetted the doing or omission of such acts, which have rendered the impugned vehicle liable for confiscation under Section 111 (d) of the Customs Act, 1962. And wherever they will surrender themselves liable to penalty under Section 112(a) (b) of the Customs Act, 1962. Shri Rehman Shaikh had played a pivotal role in the fraudulent import of the impugned vehicle as is evident from the aforementioned facts and narrated in his statement recorded on 10/09/2008 19/09/2008, inasmuch as he had caused the import of the impugned vehicle in the name of Shri Zubair Ahmed. Accordingly, the Show Cause Notice was proposed as to why the impugned vehicle should not be confiscated under the provision of Section 111(d) of the Customs Act, 1962 {read with Section 7 Section 11(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nership of the goods imported. The courts below have failed to appreciate that there is no evidence regarding involvement of the appellant in vacuo smuggling or mis-declaration or any contravention of law. The order of absolute confiscation of the vehicle is without any authority of law. Even if it is found that the car is liable for confiscation, the car imported by the appellant is not prohibited goods causing for absolute confiscation. As per Section 125 of the Customs. Act, 1962 Adjudicating Authority has to other option but to allow the appellant/importer to redeem the goods on payment of fine in lieu of confiscation. The court below failed to appreciate that as per Section 110 of the Customs Act, 1962. It is not mandatory to seize the car during investigation. The DRI had reason to believe that the car was liable for confiscation, a SCN should have been issued as contemplated under Section 124 of the Act and only if Adjudicating Authority found that the goods are liable for confiscation, it should have been auctioned since the disposal proceedings were initiated without following due process of law and the car disposed at lower amount then alleged, as per law settled by Hon&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertificate issued by DGFT, New Delhi and if the goods are found not prohibited, 'to consider grant of option to redeem the goods on payment of fine and penalty to the owner/importer of the car. It was also observed that since the goods have already been sold, the sale proceeds will have to be refunded to the actual owner/importer after adjusting the redemption fine and penalty therefrom. Accordingly, the Id. counsel prays for a similar relief in the facts of the present case. 16. Heard the Id. A. R. for Revenue, who has relied on the impugned order. 17. Having considered the rival contentions and on perusal of the facts on record, I find that the appellant - Shri Jubair Ahmed was only a name lender for monetary consideration. He was the employee of the said Shri Rehman Shaikh. Under the facts and circumstances that the appellant was a person of small means having monthly income of about ₹ 20,000/ only, and evidently all steps for import, etc. were taken by the said Shri Rehman Shaikh. I hold the said Shri Rehman Shaikh to be the actual importer. Further, it is evident from the finding of the courts below that the said Shri Rehman Shaikh has resorted to mis-declarati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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