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TMI Blog2003 (7) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... rds the appellants are as follows - "9. The residence of Shri Mohammed Haneefa Shanavas situated at Mananakku was searched by the Senior Intellignece Officer, DRI, Trivandrum on 16-9-99 but no incriminating documents or evidence were found. State Bank of Travancore NRI branch Attingal, vide their letter dated 16-9-99, enclosed photocopies of documents pertaining to NRE account 1684 of Shanavas. As per those documents, on 12-8-99, the account was opened on which date Rs. 50,000/- was deposited. On 10-9-99 a deposit amounting to Rs. 17,50,000/- by way of TELEX Transfer dated 9-9-99 from City Exchange Bur Dubai was received and cash for the draft for Rs. 16,93,481/- and cash of Rs. 56,000/- were withdrawn. Enquiries with Indian Overseas Bank, Varkala revealed that Shri Shanavas has been sending money on a regular basis, which is in conformity with his statement. 10. The house building situated at door number IV/181 of Thiruvalla Municipality, Manjadi, which was the address given by Shri Alex C. Joseph with telecommunication authorities and mobile phone standing in his name, was visited by the Senior Intelligence Officer, DRI, Cochin on 16-9-99 for conducting search in pursuance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fa Shanavas (importer) was produced before the Customs authorities for facilitating the clearance of the car, whereas, the importer himself has admitted that the car does not belong to him. For this act of misdeclaration, I find that the vehicle is liable to confiscation under Section 111(m) of the Customs Act, 1962. 52. I also find that for his act of allowing his passport to be used for facilitating the import of the car in contravention of ITC regulations and for making misdeclaration before the Customs authorities, the importer, Shri Mohammed Haneefa Shanavas is also liable for penalty under Section 112(a) of the Customs Act, 1962." As regards other appellant, Shri Alex C. Joseph, the Commissioner recorded the following findings about his role and liability - "53. The importer, in his statement dated 10-9-99, has stated that he had imported the car in his name on the advice of Shri Alex C. Joseph. A search conducted at the residence, the address of which was given by Shri Alex C. Joseph to the telecom authorities, resulted in obtaining photocopies of passports of the importer, Shri Mohammed Haneefa Shanavas and yet another importer of a car, Smt. Asha Shivasankara Pillai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akhs. He also imposed a penalty of Rs. 1 lakh each on Shri M.H. Shanavas and Shri Alex C. Joseph under Section 112(a) of the Customs Act, 1962. Hence these appeals. 3. After hearing the both sides and considering the material on records, it is found that - (a) The Commissioner, from Para 51 extracted herein above, has apparently come to a conclusion after extensive discussion and considering the evidence on records that there was material to conclusively prove that the vehicle imported does not belong to the importer and Shri Shanavas has allowed the use of his passport, for facilitating the said import. Therefore, the import was in contravention of ITC P.N. 3/1997-2002 rendering the car liable for confiscation under Section 111(d) of the Customs Act, 1962 read with Section 3(3) of the Foreign Trade (Development and Regulation) Act, 1992. The Commissioner concluded from the affidavit of Shri Shanavas that the clearance of car was sought on false and fabricated documents, while the Registration and the Export Certificate documents which were produced are documents maintained and issued by an Agency of UAE Government which are not doubted and held to be fabricated or false, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determine clearance of a car without a licence, then a misdeclaration as regards ownership, if made, will not cause liability for confiscation of the car under Section 111(m) of the Customs Act, 1962. Since such a declaration was not required to be made under the provision of the Customs Act and also read with FT (DR) Act, 1992. Therefore the liability for confiscation of the car under Section 111(m) is not called for. (d) Once it is found that the car is not liable for confiscation under Section 111(d) and (m), there is no cause or case for penalty under Section 112(a) on Shanavas. (e) As regards the liability of the penalty on Shri Alex C. Joseph, from Para 53 of the order as extracted hereinabove and Paras 10 and 11 of the order which brings out his involvement in the subject import. On a consideration, reveals that the only incriminating nature was the recovery of the key belonging to the subject car in the name of Shanavas as also the photocopies of his passport. This Tribunal in the Final Order Nos. 69 and 70/2003, dated 24-1-2003 [2003 (161) E.L.T. 392 (Tri.)], in the case of Dr. Asha Sivasankara Pillai, as regards the very same search of this premises, alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We leave the allegation of Planting of photocopy at that; after observing, the department vide a statement dated 14-1-99 of Dr. Pillai, was aware that the passport of Dr. Pillai was collected by the person called Alex and this passport photocopies could as well be one of the documents submitted along with the clearance of the care to the Customs in Cochin. These photocopies of the passport could therefore be part of the documents which were required/submitted for the clearance of the car at Cochin port. Therefore possession and recovery from Shri Alex's sister's house in doubtful circumstance of the midnight hours cannot for penal consequences on Dr. Pillai when the car is not found to be liable for confiscation. Similarly, the recovery of the same along with papers of gas connection of Shri Alex at the said premises and other documents indicating use or a possession of the premises will not be incriminating in any manner to visit Alex with a penalty. It is pertinent to note here that Alex's statement has not been recorded inspite of the Apex Investigating Agency viz. DRI having conducted the investigations. We find no material to visit Alex for a penalty." For the same reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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