Customs, Excise and Gold Tribunal - Delhi
Shally Thapar vs Collector Of Customs on 2 November, 1992
Equivalent citations: 1993(64)ELT31(TRI-DEL)
ORDER N.K. Bajpai, Member (T)
1. These three appeals are directed against the common order of the Additional Collector of Customs, New Delhi whereby he has ordered confiscation of a Mercedez Benz Car bearing Registration No. DBB-782 under Section lll(d) of the Customs Act, 1962 and imposed the following penalties under Section 112 ibid :-
(a) Shri Shally Thapar - Rs. 2 lakhs (b) Shri Haren P. Choksey - Rs. 3 lakhs (c) Shri Inder Pal Singh alias Pali - Rs. 50,000/-
2. Taking the value of the car to be Rs. 7 lakhs, the Additional Collector has given the option to clear the car on payment of a fine of Rs. 4 lakhs in lieu of confiscation. Appellant No. (1) - Shri Shally Thapar in whose name the car was registered and from whom it was seized has stated in his appeal that he has not exercised the option and the car is still in the custody of the customs authorities.
3. Acting on information that a Mercedez Benz Car (German make) with Registration No. DDB-782 being used by Appellant No. (1) who was living in New Delhi was neither legally imported into India nor was any duty paid on it at the time of its importation, officers of the Directorate of Revenue Intelligence questioned Shri Shally Thapar on 6-1-1989 and seized the car on his failure to produce any documents of legal importation. In his statement, Shri Thapar disclosed that he had purchased the car from one Shri Haren P. Chok-sey of Bombay for a consideration of Rs. 4 lakhs paid in cash; that according to the Registration Book of the car, it was previously owned by one Shri Rupen Roy resident of C-61, Defence Colony, New Delhi and that he did not know this person; actually it was Shri Haren P. Choksey, whom he knew for several years, who had arranged the transfer of the car in his name through one Inder Pal Singh alias Pali, resident of Lajpat Nagar, New Delhi - and this person used to be available on Rajpur Road, Delhi outside the R.T.O Office. Shri Choksey had told Shri Shally Thapar that he would give him the customs documents of the car (which he had purchased in a customs auction at Bangalore) some time later; that no customs papers had been given to him.
4. In his statement on 12-1-1989 Shri Haren Choksey did not accept that he had sold this car to Shri Shally Thapar but admitted having seen the Mercedez Car at Bombay and approved the condition of the car when it was shown to him by Shri Shally Thapar and advised that it could be purchased; that the car was having a Bangalore Registration - CAU 4352 at that time; that after the purchase Shri Shally Thapar requested Shri Haren Choksey to arrange a driver who could drive the car to Delhi for handing over to him there; that he arranged a driver who delivered the car to Shally Thapar at Delhi; that since the car was having a Bangalore Registration No., Choksey arranged the transfer of the registration through one person named Pali (Inderpal Singh) who was available at Rajpur Road and who could get the car transferred in Shally's name; that since Pali was an R.T.O agent, he was known to Choksey for a number of years and he introduced Pali to Shally at Rajpur Road.
5. Shri Inderpal Singh alias Pali resident of I-84, Lajpat Nagar, New Delhi admitted, in his statement dated 13-1-1989, that Shri Haren P. Choksey of Bombay whom he knew for the last 3/4 years, used to get his work pertaining to STC vehicles etc. done through him; that in the second month of 1987 Haren P. Choksey had come to him along with Shally Thapar and his father Indrajit Thapar at the RTO office on Rajpur Road, Delhi and was shown a Mercedez Benz Car Registration No. CAU 4352; Choksey gave him the Registration Book of the car along with a No Objection Certificate and told him that he (Choksey) had sold the said car to Shally Thapar and the vehicle was to be transferred in the name of Shally Thapar and a Delhi number given. Pali also stated that he had given the prescribed forms for transfer of the car to Shally Thapar at his residence after filling them up "for getting the signatures of Rupen Roy" (who was shown as the owner of the car in the Registration Book). Pali did not accept that it was he who had got the car transferred in Shally Thapar's name although he got the registration changed from Bangalore to Delhi. He refused to do this because the Registering Authorities wanted the documents of customs clearance of the car and these were not given to him. He admitted having received a sum of Rs 400/- from Haren P. Choksey for the work done by him.
6. Enquiries made from the Bangalore Registering Authority about the vehicle CAU 4352 revealed that the Mercedez Benz Car (1984 model) was registered there on 6-6-1984 in the name of one Rupen Roy, S/o Suresh Roy, resident of 219, Siddaiah Road, Bangalore and the said Rupen Roy had applied for a NOC (No Objection Certificate) for Bombay and it was issued to him. He surrendered the NOC for Bombay and applied for a fresh NOC for Delhi which was granted to him and the car was transferred to Delhi and was assigned Delhi No. DBB 782 and the ownership was changed from Rupen Roy, S/o Suresh Roy, C-61, Defence Colony to Shally Thapar E-69, South Extension, Part-I, New Delhi.
7. Prior to its registration as CAU 4352 at Bangalore, the car was registered at Calcutta RTO office under Registration No. WME 9290 on 27-2-1984. Enquiries at Calcutta showed that this Registration No. was actually of a Premier Padmini Car which was registered in the name of one Abdul Reshia of Calcutta.
8. A scrutiny of the file relating to registration of car DBB 782 showed that the registration was transferred to Delhi from its Bangalore No. CAU 4352 by producing photocopy of a bogus Ration Card. Rupen Roy had also applied for a duplicate registration book stating that the original book was lost by him. Enquiries made in Bangalore and Delhi show that Rupen Roy was not available at any of the addresses recorded in the office of the RTOs at these places. Summons sent at these addresses to Rupen Roy have been received back undelivered with the remarks "Not known" by the postal authorities. Enquiries at C-61, Defence Colony, New Delhi - the address of Rupen Roy given in the application for transfer of the car to Shally Thapar - show that no person of that name ever lived at that place. None of the three appellants have furnished the whereabouts of Rupen Roy. Enquiries in the RTO office, Bangalore did not help because the file of registration was not found in the bundle of files.
9. Enquiries about the origin of the Mercedez Benz Car made from M/s. Daimler Benz A.G., Stuttgart (West Germany), through their agents M/s. Tata Engineering & Locomotive Company Ltd., New Delhi, revealed that the car was sold to their Swedish General Agent on 13-8-1982 and the year of manufacture was 1982.
10. Thereafter, a show cause notice was issued to all the three appellants and also to Rupen Roy alleging that the car was not legally imported into India and no documents in support of payment of customs duty etc. had been produced; that Rupen Roy in whose name the car was registered before its transfer in the name of Shally Thapar was non-existent person and his addresses in the three RTO offices at Calcutta, Bangalore and New Delhi were found to be bogus. That somebody had got the Mercedez Benz Car registered at Bangalore by using a Registration No. of Calcutta which was found to be that of Premier Padmini Car; that someone had used a bogus Ration Card which fact had been admitted by the last owner of the car namely Shri Shally Thapar. The allegation against Shri Haren P. Choksey was that he had sold the vehicle to Shally Thapar for Rs. 4 lakhs and got the vehicle transferred from Bangalore No. CAU 4352 to Delhi Registration No. DBB 782 and got this done through Shri Inderpal Singh Vohra alias Pali. It was also alleged that both Shri Shally Thapar and Haren P. Choksey were aware of the fact that the vehicle was not legally imported into India. Finally, it was alleged that all the three persons namely, S/Shri Shally Thapar, Haren P. Choksey and Inderpal Singh had conspired to get the illegally imported vehicle regularised and registered on the basis of bogus documents with a view to hoodwink the enforcement agency. It was also alleged that all the three persons were known to each other for quite a long time and had some understanding with each other and had conspired in acquiring the said illegally imported Mercedez Benz Car. The car was liable to confiscation because, being a foreign car, it could not be imported into India without a valid import licence or CCP and these persons were liable to penalty.
11. After receiving the replies of the three appellants and after hearing them, the Additional Collector passed the impugned order which has been challenged before us.
12. Arguing for Shri Shally Thapar, Shri G.L. Rawal, the learned Counsel first submitted that while the matter was heard by Shri I.R. Soni, Additional Collector of Customs, the order of confiscation and penalty has been passed by Shri Yuv Raj Gupta, his successor in office, without notice of hearing and the order was, therefore, bad. He cited the decision of the Supreme Court in the case of B. Vijaya Kumar, (1991 JT 86) and the decision of the Bombay High Court in the case of M.R. Bhansali & Co. v. Union of India (Writ Petition No. 1333/1988). It was the contention of Shri Rawal that even if there is breach of law relating to the customs and the same is on account of bona fides, the goods are not liable to confiscation. He also referred to the decision of the Supreme Court in the case of Raj Parkash Chemicals Ltd. and Anr. v. Union of India and Ors., AIR 1986 (SC) 1021, as well as Shama Engine Valves Ltd., Bombay v. Collector of Customs, Bombay, [1984 (18) E.L.T. 533], and submitted that penalty has been imposed on Appellant No. (1) on the ground of "mala fide involvement", whereas the bona fides of the Appellant No. (1) were very clear. He submitted that the adjudicating authority had finally accepted the version of Appellant No. (1) that he had purchased the car from Haren P. Choksey. Inasmuch as the conduct of Appellant No. (1) was not contumacious, he had declared the purchase of the car in his wealth tax return, it cannot be said that the conduct of Appellant No. (1) was mala fide. Further, there was no evidence to show that the value of the car was Rs. 7 lakhs as alleged. In fact, it was the case of Appellant No. (1) that he had paid a sum of Rs. 4 lakhs to Appellant No. (2) as the price of the car and the Department had not brought any other evidence on this point on record. He also referred to the decisions of the Tribunal in the case of Collector of Customs & Central Excise, Chandigarh v. Ajit Singh and Anr. [1987 (32) E.L.T. 769] & Jogendra Prasad Yadav v. Collr. of Customs [1990 (50) E.L.T. 250], in which it was held by the Tribunal that penalty was not sustainable if the order imposing penalty under Section 112 of the Customs Act, 1962 was passed without specifically mentioning the clause of Section 112 applicable. On this ground alone, he submitted that the order imposing penalty was liable to be set aside. He also referred to the judgment of the Supreme Court in the case of Associated Cement Co. v. Commercial Tax Officer, Kota (AIR 1981 SC 1887), in which the Apex Court had held that penalty could not be imposed in a case in which the assessee had acted under bona fide belief that freight charges were not includible in the sale price under the Rajasthan Sales Tax Act, 1954. As far as the bona fides of Appellant No. (1) were concerned, he submitted that the appellant: had misled himself in this case.
13. Shri Ashok Mehta, the learned SDR submitted that Appellant No. (1) had been dealing with imported cars for quite sometime and should have known the law that foreign cars could not be imported except against a Customs Clearance Permit. The fact that a car which was registered in the name of a non-existent person had been seized from Appellant No. (1) and the latter had got the registration transferred in his name through the RTO was significant and, in these circumstances, the plea of bona fide belief on the part of the Appellant No. (1) was not tenable. The whole transaction was a fraud in which bogus documents were created including a Ration Card and registration and transfer in the name of Rupen Roy, who could not be found anywhere. It was for Appellant No. (1) to explain that the purchase of the car from a person who had subsequently been found to be non-existent was bona fide. The learned SDR placed reliance on the disclosures made by Appellant No. (1) in his various statements.
14. As regards the case law cited by the learned Counsel, Shri Ashok Mehta submitted that it was not relevant because the Customers were acting under the impression that canalised items could be imported and when the Supreme Court clarified that canalised items could not be imported, the Customs Authorities initiated proceedings and the subsequent penalty and confiscation which were not held to be valid by the Supreme Court. The conduct of Appellant No. (1) had to be judged keeping in view the fact that he was an educated person, had special knowledge about foreign cars and had not received any documents of legal importation of the car into India from Shri Haren P. Choksey. He submitted that in the circumstances of this case and in view of the overwhelming evidence cited in the show cause notice, the burden of proving that the car was legally imported into India was shifted to Appellant No. (1). He cited the decision of the Supreme Court in the case of Kanungo & Co. v. Collr. of Customs, Calcutta and Ors. [1983 (13) E.L.T. 1486 (SC)].
15. As regards the plea that in the absence of specific mention of clause (a) or (b) of Section 112, the order imposing penalty could not be sustained, the learned SDR cited the decisions of the Tribunal in the case of Borivli Hosiery Mills v. Collector of Customs & Central Excise, [1991 (56) E.L.T. 76] and M.V. Chidambaram and Ors. v. Collector of Customs, Madras, [1987 (29) E.L.T. 601], in which it was decided that non-mention of the clause of Section 112 did not vitiate the proceedings when the order of adjudication as well as the show cause notice gives sufficient material and evidence on the basis of which penal action is taken. The learned SDR also referred to sub-paras (e) & (f) of para-graph-22 of the show cause notice which mentioned about the knowledge of Appellant No. (1) and Appellant No. (2) that the car was not legally imported into the country and the conspiracy hatched by all the three appellants to get the illegally imported car registered on the basis of bogus documents with a view to hoodwink the enforcement agencies.
16. Replying, Shri G.L. Rawal, the learned Counsel referred to the five judge bench decision of the Supreme Court in the case of Amba Lal v. Union of India and Ors. [1983 (13) E.L.T. 1321 (SC)], in which the Apex Court had held in paragraph-8 that the burden of proof was on the prosecution and, save in a very exceptional class of case, never shifts. He also referred to the decision of the Tribunal in the case of Balvir Singh v. Collector of Customs, [1991 (56) E.L.T. 64] in which the Tribunal had held that in a case where either clause of Section 112 of the Customs Act has not been specifically mentioned, the order imposing penalty was liable to be set aside.
17. Arguing on behalf of Haren P. Choksey, Appellant No. (2), Shri SectionL. Sethi, the learned Advocate submitted that his client was neither an importer nor a dealer but an Automobile Consultant. He submitted that three main questions had to be considered against Appellant No. (2) on whom a penalty of Rs. 3 lakhs had been imposed for mala fide involvement. These were :-(a) Whether Appellant No. (2) had at all sold the car to Shri Shally Thapar for Rs. 4 lakhs; (b) Whether Appellant No. (2) had done anything knowing or having reason to believe that the car was not legally imported into India & (c) Whether Appellant No. (2) had done anything attracting liability to penalty under Section 112.
18. Shri Sethi submitted that the vital fact of purchase of the car by Shally Thapar on 31-1-1987 had been omitted from the show cause notice because when the registration was made in the name of Shally Thapar, he was already in possession of the car. As regards the payment of the amount of Rs. 4 lakhs to Appellant No. (2) in cash, Shri Sethi referred to an advertisement in the Newspaper by the Income Tax Department which read as under :-
"When you make payments exceeding Rs. 10,000 incurred in the case of running your business/profession, other than through crossed-cheque/bank draft, the expenditure is not deductible in terms of Section 40A (3). So ensure proper mode of payment".
In this connection he referred to the statement, dated 5-4-1989 of Shri Shally Thapar in which he had stated that he had made an entry in his Account Books for account purposes of the aforesaid payment. Shri Sethi submitted that this entry must have been made after the close of the financial year and Shri Shally Thapar had not produced his Account Books to substantiate the aforesaid payment. He also submitted that the request for cross-examination of Shally Thapar had been rejected by the adjudicating authority without assigning any reasons. Shri Sethi also stated that motor cars are not different from other goods. Provisions of Section 123 of the Customs Act regarding burden of proof were also applicable to motor cars. The Customs Authorities had not discharged their onus that the car had not been validly imported into India. They should have made further enquiries in the matter before fastening penal liability on his client. He referred to the following decisions on the question of cross-examination :-
(1) Anil Mansaramani and 5 Others v. Collector of Customs [1988 (38) E.L.T. 200] (2) B.M. Auto India v. Collector of Central Excise [1989 (41) E.L.T. 69] (3) Pradeep Kumar Sengupta v. Collector of Central Excise [1989 (41) E.L.T. 412] (4) Eros Metal Works (P) Ltd. v. Collector of C. Excise [1989 (43) E.L.T. 361] Finally, he submitted that the written submissions on behalf of Appellant No. (2) given by him and appearing at pages 123-127 of the appeal paper book of Appellant No. (2) has not been given proper consideration by the adjudicating authority.
19. Appearing for Shri Inderpal Singh alias Pali, Shri K.K. Anand, the learned Counsel submitted that once No Objection Certificate for transfer of the Car from Bangalore to Delhi was available, Appellant No. (3) could have no reason to believe that the car was liable to confiscation. Referring to sub-para (e) of Paragraph-22 of the impugned order, the learned Counsel submitted that there was no allegation against his client that he was aware that the car was not legally imported into the country and submitted that whatever he did was in the normal course of business. Referring to Paragraph-7 of the impugned order in which there was a reference to Appellant No. (3) as having rendered help in getting the registration of the car transferred, the learned Counsel submitted that such an action was not violative of the provisions of Section lll(d) of the Customs Act. On the question of validity of the statement of a co-accused, the learned Counsel referred to the decision of the Tribunal in the case of Orient Enterprises, New Delhi v. Collector of Customs, Cochin [1986 (23) E.L.T. 507], in which it was held that an exculpatory statement of a co-accused or co-conspirator is always tainted with falsehood because he twists the story or colours the version in a way to show himself innocent and paints his companion as the prepetrator of the crime. He referred to another decision of the Tribunal in the case of Debu Saha v. Collector of Customs [1990 (48) E.L.T. 302] on the same subject. The learned counsel also stated that he was adopting the decisions on imposition of penalty cited by Shri Rawal, the learned Counsel for Appellant No. (1). He also cited the judgment of the Supreme Court in the case of Akbar Badruddin Jiwani v. Collector of Customs [1990 (47) E.L.T. 161], in which the Apex Court had held that a case in which the appellants have acted on the basis of bonafide belief, the appellants, deserved lenient treatment. In Paragraph-59, the Court had held as under :-
"59. We refer in this connection the decision in Merck Spares v. Collector of Central Excise & Customs, New Delhi - 1983 (13) E.L.T. 1261, Shama Engine Valves Ltd., Bombay v. Collector of Customs, Bombay - 1984 (18) E.L.T. 533 and Madhusudan Gordhandas & Co. v. Collector of Customs, Bombay - 1987 (29) E.L.T. 904 wherein it has been held that in imposing penalty the requisite mens rea has to be established. It has also been observed in Hindustan Steel Ltd. v. State of Orissa - 1970 (1) SCR 753] by this Court that :-
"The discretion to impose a penalty must be exercised judicially. A penalty will ordinarily be imposed in cases where the party acts deliberately in defiance of law, or is guilty of contumacious or dishonest conduct, or acts in conscious disregard of its obligation, but not, in cases where there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute."
20. Shri Anand submitted that mens rea was an important element for imposing penalty and it figures specifically in Section 112.
21. Shri Ashok Mehta, the learned SDR submitted that the question of confiscation of the car and imposition of penalties on the appellants was considered by the adjudicating authority in the light of the total evidence available in this case. The fact that Rupen Roy in whose name the car was registered was found to be fictitious person on the basis of enquiries made at Bangalore, Calcutta and Delhi had to be placed in the proper perspective. The Department has also made enquiries as to when and where the car came into India from the local agents of the manufacturers and this fact had specifically been referred to in the show cause notice. It had also to be remembered that a motor car was different from textiles, video cassette recorders and other articles in the sense that while they were manufactured in India, a Mercedez Benz Car is not manufactured in India and had necessarily to be imported from abroad and this could be done only under, and in accordance with, a Customs Clearance Permit. The presumption was that all the three appellants being concerned with purchase, sale and registration of foreign cars, would be aware of the provisions of the law regulating the import of cars into India and the liability of payment of duty and of producing documentary evidence of import and payment of duty. Appellants No. (1) & (2) were known to each other and had entered into transactions relating to sale, and purchase of foreign cars in the past. Appellant No. (2) had admitted that he had sent his driver from Bombay to Delhi and there was no reason why he did this unless he had interest in the matter. Moreover, Choksey had not mentioned anything about brokerage.
22. This was apparently done to fit in with his defence that he had merely acted as a Consultant. Choksey did not rest content with merely sending a driver to drive the car to Delhi, but he himself travelled to Delhi to arrange transfer of registration of the car in the name of Shally Thapar. There was no reason why Choksey should have done all these things unless he had interest in the matter and this, in the facts of this case, which have come on record, leads to the conclusion that it was Choksey who had sold the car to Shally Thapar and he had not only arranged its being taken to Delhi, but also so arranged matters that the registration also was transferred from Bangalore to Delhi and the change of ownership from Rupen Roy to Shally Thapar. All this was apparently part of the deal of sale of the car. Otherwise, there was no reason why he should have paid a sum of Rs. 400 to Pali, who had fixed up matters in RTO's office. All these facts do not fit in with the theory that Choksey was only acting as a Consultant. In fact there is a corroboration in Pali's statement that Choksey had told him that he had sold the Mercedez Benz Car to Shally Thapar.
23. The learned SDR also submitted that cross-examination of co-accused was not permissible and, in any case, was not a necessary part of adjudication proceedings and cited the decision of the Madras High Court in the case of K. Balan v. Govt. of India, [1982 (10) E.L.T. 386]. Shri Mehta also submitted that there was corroboration of the statement of Shally Thapar and, therefore, there was no need for cross-examination. In this connection, he referred to the decision of the Supreme Court in the case of Haroon Haji Abdulla v. State of Maharashtra, (AIR 1968 SC 832), especially Paragraph-12, the relevant portion of which was as under :-
"12. In 1952 SCR 377 = AIR 1952 SC 54 this Court laid down certain general rules about the nature of corroboration needed before accomplice evidence may be accepted. It is there pointed out that every detail of the story of the accomplice need not be confirmed by independent evidence although some additional independent evidence must be looked for to see whether the approver is speaking the truth and there must be some evidence, direct or circumstantial which connects the co-accused with the crime independently of the accomplice. One such circumstance may be the making of a number of confessions without a chance for prior consultation between the confessing co-accused. But before even a number of such confessions can be used each such confession must inspire confidence both in its content and in the manner and circumstances of its making. If there be any suspicion of false implication the confession must be discarded as of no probative value. This may result from a variety of circumstances of which a few alone may be mentioned, such as why the accused confessed, whether he expected a gain for himself by implicating his co-accused, the part he assigns to himself and that to his co-accused, the opportunity for being coached up to narrate a false story or a story false in certain details. Where there is a single retracted confession corroborating other accomplice evidence, the caution must necessarily be still greater and the probative value smaller. Even if there are more than one such confession and they are proved to be given independently and without an opportunity for a prior concert, the probative value may increase but the need for caution remains because a number of suspects may be prompted by the same or different motives to embroil a particular individual. It is only when false implication is excluded after close scrutiny that confession of a co-accused can be used to lend assurance to other evidence. This was so stated by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckcrburty, (1911) ILR 38 Cal 559 at p. 588 and accepted by this Court, and a retracted confession cannot obviously go further or have higher value."
Shri Mehta submitted that the conditions laid down in this judgment have been fully satisfied in the present case. The allegations were based on the statements which had not been retracted and corroboration of material particulars was available from the course of events which subsequently took place as supported by the records of the R.T.O. specially at Delhi. He also referred to Section 106 of the Evidence Act about facts which were specially in the knowledge of these persons and referred to the judgment of the Supreme Court in the case of D. Bhoormull for the purpose. Thus based on the direct as well as circumstantial evidence, the possibility of anyone being falsely implicated is completely excluded. Based on the statement of Shally Thapar in which he had named Haren P. Choksey and Inderpal Singh, the latter two were questioned and they too have admitted that they were concerned with the transfer of the Mercedez Benz Car to Shally Thapar. Shri Mehta submitted that in view of the conduct of Haren P. Choksey, to which he had invited attention, it was clear that his plea that he was merely acting as an Automobile Consultant could not be accepted. Unless he had himself sold a car which had not been imported lawfully why should he have been interested in ensuring the transfer of its registration in the name of Shally Thapar. Similarly, Inderpal Singh was also responsible for the transfer of the car while knowing that the documents of its legal import into India and payment of duty were not available.
24. On the question of non-mention of the specific clause of Section 112 for imposing penalty as a ground for setting aside the order, the learned SDR referred to the two decisions of the Tribunal in the case of M.V. Chidambaram and Ors. v. Collector of Customs, Madras [1987 (29) E.L.T. 601] and Borivli Hosiery Mills v. Collector of Customs and Central Excise [1991 (56) E.L.T. 76].
25. We have considered the appeals and the submissions of S/Shri Rawal, Sethi, Anand, the learned Counsels for the three appellants as well as the submissions of the learned SDR Shri Ashok Mehta. The evidence in this case consists of the statements recorded from the appellants, the enquiries made from the RTO at Bangalore, Calcutta and Delhi and from the manufacturers of the car, enquiries about Rupen Roy, besides the documents of registration etc. seized during the enquiries. None of the statements which were recorded under Section 108 of the Act, have been retracted. Before considering the merits of the appeals we have to decide four points which are as under :-
(a) Whether, as was claimed in Shally Thapar's appeal, while the matter was heard by one officer the impugned order was passed by his successor-in-office without giving an opportunity of hearing afresh in violation of the principles of natural justice.
(b) Whether the value of the car has been fixed at Rs. 7 lakhs without any basis and the fine in lieu of confiscation accordingly put at Rs. 4 lakhs.
c) Whether it was permissible for the learned Additional Collector to have refused cross-examination of Shri Shally Thapar - a co-notice specially when his testimony was relied upon against Shri Haren P. Choksey - another co-noticee in the proceedings.
(d) Whether, in the facts and circumstances of this case, the order imposing penalty under Section 112 of the Act without citing the relevant clause (a) or (b) thereof is sustainable specially in view of the case law on the subject cited by both sides.
26. In order to verify the facts about the hearing as contended by Shri Rawal, we had directed the learned SDR to produce the case records from which it appeared that Shri Yuv Raj Gupta, the learned Additional Collector who passed the order had fixed a fresh hearing on 25-9-1990 and had issued notices to all the three appellants. The notice to Shally Thapar was received back undelivered with the remark of the postal authorities "out of station", while the other two appellants attended the hearing. Once this fact was placed before us, Shri Rawal submitted that he does not press the point and wanted the appeal to be decided on merits.
27. As regards the value of the car, the only evidence is the statement of Shally Thapar that he had paid an amount of Rs. 4 lakhs in cash to Haren Choksey as the purchase price. There is nothing to indicate that any enquiries were made and there is no other evidence on record to substantiate how it was increased to Rs. 7 lakhs because the only mention of this amount is in Paras 24 and 25 of the show cause notice. We cannot, therefore, uphold the conclusion in the order that the price of the car was Rs. 7 lakhs.
28. On the question of cross-examination, we find that though the learned Additional Collector has not recorded any reasons for refusing cross-examination, the learned SDR has supported the order on the ground that since corroborative evidence was available, it was not obligatory in adjudication proceedings to test the evidence by cross-examination. He has placed reliance on the judgment of the Supreme Court in Haroon Haji Abdullah's case (supra) in which the Court has observed what precautions should be taken before placing reliance on the testimony of a co-accused. Shri Sethi has, on the other hand, cited several decisions of the Tribunal in support of the view that when reliance is placed on the testimony of a co-accused, cross-examination should ordinarily be permitted. We will have to consider the facts of this case to judge whether there has been any denial of principles of natural justice because of the refusal of the adjudicating authority to permit cross-examination of Shally Thapar in the proceedings against Haren Choksey. The Supreme Court has held in the case of State of Kerala v. KG. Shaduli [AIR 1977 (SC) 1627], its judgment which we quote :-
"This rule which requires an opportunity to be heard to be given to a person likely to be affected by a decision is also like the genus of which it is a species, not an inflexible rule having a fixed connotation. It has a variable content depending on the nature of the enquiry, the framework of the law under which it is held, the constitution of the authority holding the enquiry, the nature and character of the rights affected and the consequences flowing from the decision. It is, therefore, not possible to say, that in every case the rule of 'audi alterant partem' requires that a particular specified procedure to be followed. It may be that in a given case the rule of an audi alterant partem may import a requirement that witnesses whose statements are sought to be relied upon by the authority holding the enquiry should be permitted to be cross-examined by the party affected while in some other case it may not"
(emphasis supplied).
29. We observe that copies of the statements of Shally Thapar, on the basis of which Haren Choksey was summoned and questioned, were supplied to the latter along with the show cause notice. Even in his own statements, dated 11-1-1989 and 12-1-1989 which were recorded soon after the enquiries commenced and Shally Thapar was questioned, Haren Choksey did not deny his acquaintance with Shally Thapar; he admitted having known him for several years and having sold two Toyota cars to him in the past. He even admitted that he used to meet Shally Thapar at Delhi whenever he was in Delhi. He admitted having approved the condition of the Mercedez Benz Car for its purchase by Shally Thapar when it was shown to him. He even provided a driver to take the car to Delhi for handing it over to Shally Thapar. But he denied having sold the car or having received any consideration for it while, at the same time admitting that the car was registered at Bangalore and he helped him in getting it transferred to Delhi and registered in Shally Thapar's name through Appellant No. (3). It is significant that it is Appellant No. (3) who has corroborated Shally Thapar's version that it was Haren Choksey who told Appellant No. (3) that he had sold the Car to Shally Thapar. Such being the state of evidence and its corroboration it cannot be said that there has been any violation of the principles of natural justice because of not permitting cross-examination of Shally Thapar. We also observe that copy of Pali's statement as also furnished to Haren Choksey along with the show cause notice and he did not challenge Pali's version which supports Shally Thapar's disclosure in his reply. In these circumstances, we do not think that there is any substance in the plea which we reject.
30. So far as the case law about right of cross-examination cited by Shri Sethi is concerned, in Anil Mansaramani's case (supra), the Tribunal had held that denial of cross-examination on the ground that the witnesses were not available was not sustainable. Thus, the facts of that case being different from the facts of the present appeal, its ratio is not applicable. In RM Auto's case (supra), the Tribunal had held that cross-examination of witnesses in the facts of that case was necessary. There is nothing to show in this decision that any independent corroboration of the version of witnesses were available. In Pradeep Kumar Sengupta's case (supra) the Tribunal had set aside the order of the lower authority on a question of fact whether there was a request for cross-examination in the reply to the show cause notice. In Eros Metal Works (supra), the conclusion was that while granting adjournment of hearing the appellants could have been called upon to cross-examine the witnesses present, particularly because the appellants' request for adjournment was accepted by the adjudicating authority. Thus, we find that all the four cases cited by the learned Counsel in support of his plea for cross-examination are distinguishable on facts, and we have seen that in the circumstances of this case when corroboration of material facts about the sale of the car by Haren P. Choksey to Shally Thapar was available, denial of Shally Thapar's cross-examination did not result in violation of principles of natural justice.
31. There are only two points on which Haren Choksey and Pali have not admitted the allegations made against them by the co-noticees and, in terms of the Supreme Court judgment in Haroon Haji Abdulla's case (supra), we have to consider the nature of direct or circumstantial evidence available in support of the allegations. The allegation against Haren Choksey is that it was he who had sold the car to Shally Thapar for Rs. 4 lakhs received by him in cash. Choksey has denied this allegation and offered his own explanation. If Choksey's version were true, it was not necessary for him to have travelled to Delhi, once he had, in his capacity as an automobile consultant, given his opinion about the suitability of the car, but the fact is that he not only came to Delhi but also took Shally Thapar to Pali and ensured that the deficiency of unlawful import of the car was properly covered in the documents of registration at Delhi. These inconsistencies in the conduct of Choksey do not fit in with his version and conclusions have to be drawn in the light of the circumstantial evidence. Corroboration of material facts leading to the registration of the car at Delhi and also change of ownership in the records of the R.T.O. supports the conclusion about his guilt. Several important facts stand out. While Choksey admits having certified the suitability of the car, there is no mention in it of the price of the car at all. Could this not be deliberate? Once the price of Rs. 4 lakhs was mentioned by him, the matter would advance one step further to support the allegation of sale of the car by him. Secondly, there is no mention anywhere about Choksey's brokerage or commission for services rendered including expenses of journey to Delhi and return to Bombay. The learned SDR had referred to this aspect in the course of his arguments while contesting Choksey's version. And above all, why should Choksey pay for change of registration to Pali unless this work was also part of the total transaction of sale of the car to Shally Thapar. There is also no explanation of the total absence from the scene of Rupen Roy. In the light of these discussions, the inevitable conclusion is that it was Haren Choksey who sold the car to Shally Thapar for an amount of Rs. 4 lakhs and since the documents of its lawful import were not available, bogus documents had to be used in arranging change of registration and a fictitious person put up as the owner. The presumption, therefore, is that all this was done with full knowledge of all the three persons who had conspired in this unlawful act. After the detection of the case, everyone has been trying to save his skin by offering explanations which would protect him from being implicated.
32. While admitting all material facts about the arrangements for change of registration of the car, Pali has denied two material facts and these are very significant. While admitting that it was he who filled the three forms prescribed for transfer of registration, he denies having got them signed by Rupen Roy for which purpose alone he had given them to Shally Thapar after filling them. Secondly, he denies having done the transfer of ownership in Shally Thapar's name because the documents of customs clearance were required by the R.T.O. and these were not given to him. His conduct too would have to be judged in the light of the circumstantial evidence which has come on record and, like the case against Haren Choksey, Inderpal Singh too has tried to avoid admitting anything which would directly implicate him. Since he filled the forms in which Rupen Roy's name and address has also been filed by him, the legitimate question which should have arisen in his mind was who Rupen Roy is and why he has not come forward as the seller of the car. It is significant that he is completely silent on this point. Secondly, the reason for not admitting the transfer of the car in Shally Thapar's name is that a bogus document - the ration card - had been produced and once Pali admits having done this part of the transfer, it will be established that it was he who had used the bogus document in the transfer of ownership of the car.
33. We now proceed to consider the last contention made on behalf of all the appellants - that the order imposing penalty is not sustainable because the particular clause - Clause (a) or Clause (b) - of Section 112 of the Act under which penalty has been imposed has neither been mentioned in the show cause notice nor in the adjudication order. The contention is that to that extent the order is vague and it can be said that the adjudicating authority has not made up his mind whether he is acting under Clause (a) or under Clause (b). In support of this contention, Shri Rawal had cited the decisions of the Tribunal in Ajit Singh's case (supra) as well as Jogendra Prasad Yadav's case (supra), in both of which the Tribunal had held that the particular Clause under which the penalty was being imposed should have been mentioned in the order. While accepting this contention, in Ajit Singh's case (supra), the Tribunal had referred to the judgment of the Madras High Court in the case of B. Lakshmichand v. Government of India [1983 (12) E.L.T. 322]. This appears to us to be the first decision on this question and in Paragraph-3 of his judgment Mr. Justice Nainar Sundaram observed as under :-
"3. I have been taken through the show cause notice and as well as the orders passed by the authorities under the Act in the present case. There is only the bare quoting of Section 112 of the Act and there is no reference to either to Clause (a) or (b) or both of Section 112 of the Act. The essential ingredients have not been specifically set out with reference to either of the clauses. Hence, it has got to be held that there was no making up of mind either at the earlier stage or at the subsequent stage of the prosecution of the proceedings and the passing of the orders thereon as to which of the clauses would be attracted in the instant case. The whole matter has been dealt with in a sphere of ambiguity. The present case is not a case where a wrong provision has been quoted, so that it can be stated that it was due to a bonafide error, which did not vitiate the jurisdiction of the Authority. As stated above, this is a case where there had been a failure to apply the mind as to which of the clauses is relevant and would be attracted. The power and the discretion given to the Authority functioning under Section 112 of the Act are judicial in character and are open to judicial review, and if they are found to have been exercised on irrational and ambiguous basis, the court will strike down the orders."
34. It will be seen from the above that the Court had observed that ap from absence of reference either to Clause (a) or Clause (b) or both because the absence of essential ingredients with reference to either of the clauses, order imposing penalty was not sustainable. On this question, the learned SI had specifically invited our attention to Paragraph-22 of the show cause not and had laid stress on the allegation of conspiracy on the part of all appellants in sub-para (f) thereof. He had also referred to sub-paragraph (e) is necessary for a proper appreciation of the matter to refer to the enl paragraph in the show cause notice, which is reproduced as under :-
"22. From the foregoing it emerges, (a) that there are no import papers/customs duty paid papers/import licence to show that the mercedez car bearing Engine No. 61594010323029 and Chasis No. 120101334057 and registered at Calcutta under Registration No. WME-9290 and subsequently at Bangalore and Delhi under Registration No. CAU-4352 and DBB-782 was legally imported into the country, and
(b) that the person named Rupen Roy, S/o Shri Suresh Roy is a non-existent person as it has come on record that the address given in the Records of Registration Authorities as to be the owner of the said Mercedez Benz Car bearing Engine No. 61594010323029, Chasis No. 120101334057 at the three R.T.O. Offices i.e. Calcutta, Bangalore and New Delhi were found to be bogus and at Delhi no person by the name of Rupen Roy, lived in House No. C-61, Defence Colony, New Delhi as much as the summons issued by Regd. Post A.D. have been returned by the postal Authorities with remarks. It also appears that somebody had got the Mercedez Benz Car Registered at Bangalore by using a number of Calcutta Registration Authority WME-9290 which was found to be of that of Premier Car and not a Mercedez Benz Car.
(c) It also appears that at Delhi Registration Authority also someone has used a bogus Ration Card which in fact has been admitted by the last owner/purchaser Shri Shally Thapar of E-300, Greater Kailash, New Delhi.
(d) It also appears that Shri Haren P. Choksey of Bombay had sold the vehicle to Shri Shally Thapar for Rs. 4 lakhs and further got the said vehicle transferred from Bangalore No. CAU 4352 to Delhi Registration No. DBB-782 and got the work done, from Shri Pali (Inderpal Singh Vohra) and subsequently got the car transferred from the name of Shri Rupen Roy in the name of Shri Shally Thapar.
(e) It also appears that Shri Haren P. Choksey and Shri Shally Thapar were aware of the fact that the vehicle was not legally imported into the country.
(f) It also appears that all the three persons namely Sh. Haren P. Choksey, Sh. Shally Thapar and Shri Pali (Inder Pal Singh) had conspired to get the illegally imported vehicle regularised and registered on the basis of bogus documents with a view to hoodwink the enforcement agencies as this being an imported vehicle could have only been registered on the basis of valid customs cleared documents.
(g) It also appears that all the three were known to each other for quite a long time and had some understanding with each other and conspired in acquiring the said illegally imported Mercedez Benz Car under seizure.
(h) From the foregoing paragraphs, it appears that the said Mercedez Benz Car 200-D-LHD Engine No. 61594010323029 has been illegally imported into India without payment of customs duty."
35. Shri Ashok Mehta had also submitted that complete details of the offence committed by the three appellants were mentioned in Paragraphs-22 to 25 of the show cause notice and had placed reliance on two decisions of the Tribunal, namely, in the case of M.V. Chidambaram and Ors. v. Collector of Customs, Madras [1987 (29) E.L.T. 601] and Borivli Hosiery Mills v. Collector of Customs & Central Excise [1991 (56) E.L.T. 76], in both of which it was held that non-mention of the sub-clause of Section 112 of the Act does not vitiate the proceedings when the order of adjudication as well as the show cause notice gives sufficient material and evidence on the basis of which the proposed penal action is taken against the appellants. These decisions are in line with the decision of the Madras High Court in Lakshmichand's case (supra) and, when applied to the facts of the present appeal, it would be seen that the allegations in sub-paragraphs (d) to (g) of paragraph-22 have spelt out all the ingredients of Clause (b) of Section 112 of the Act. To be more precise, there is allegation of sale of the car by Shri Haren P. Choksey to Shri Shally Thapar and its transfer and registration by Shri Pali in sub-paragraph (d). In sub-paragraph (e) there is reference to the fact that Haren P. Choksey and Shally Thapar were aware that the car had not been legally imported and, in sub-paragraph (f) there is a reference to the conspiracy among the three persons to get the illegally imported vehicle registered on the basis of bogus documents with a view to hoodwinking the enforcement agencies. Finally, in sub-paragraph (g), there is a reference to the conspiracy among the three persons in acquiring the said illegally imported Mercedez Benz Car. Thus, all the ingredients mentioned in Clause (b) about acquisition, sale, purchase and knowledge have been specially mentioned in the aforesaid paragraphs after full details of the sequence of events were enumerated in the show cause notice. Therefore even on the basis of the case law cited by the learned Counsels for the appellants, it cannot be said that mere non-mention of the Clause of Section 112 has resulted in any failure of justice to the appellants. We, therefore, reject this contention of the appellants. Two of the Counsels had also referred to the judgment of the Supreme Court in the case of Akbar Badruddin Jiwani's case (supra) in Paragraphs 58 and 59, the Apex Court had examined the question of bonafide belief for the purpose of determining whether penalty should be levied. We have already examined this question at length in this order and are of the view that the conduct of none of the appellants can be said to have been bonafide or that there was a technical or venial breach of the provisions of the Act. The appellants who were all dealing with imported cars in one way or the other, were aware of the requirements of the law. They had used bogus documents and put up a non-existent person as the owner of the car in the records of the RTO at Bangalore on the basis of which a No Objection Certificate was obtained culminating in transfer of the vehicle from Bangalore to Delhi and its transfer in the name of Appellant No. (1). The circumstantial evidence which has come on record based on their own statements corroborated in material particulars with reference to the records of the RTO at Calcutta, Bangalore and Delhi, clearly go to establish the allegations contained in the show cause notice rendering the appellants liable to penalty. The adjudicating authority has, after examining all the evidence rightly held their mala fide involvement and we agree with him and reject all the appeals.
36. Before we finally dispose of the appeals it is necessary to deal with a few points about the case law cited before us. Shri Rawal had stated in reply to the learned SDR's submission about the applicability of the judgment of the Supreme Court in the case of Collector of Customs, Madras and Ors. v. D. Bhoormull, [1983 (13) E.L.T. 1546], that the judgment in Ambalal's case (supra) being a 5 Judge Bench decision, would prevail over the judgment in Bhoormull's case. We notice that the judgment in Ambalal's case was pronounced on 3rd October 1960, whereas in Bhoormull's case on 3rd April 1974 and the Bench which decided Bhoormull's case, had distinguished Ambalal's case. We have also seen that the import of foreign cars not only requires a Customs Clearance Permit but that in the present case, there is evidence to show that the car was initially sold to the Swedish General Agent by the German manufacturers. Further, evidence of registration of the car in Calcutta first as a Premier Pad-mini, and later its transfer to a non-existent person and use of bogus documents for its transfer to Shally Thapar has been brought on record. All these facts were within the special knowledge of the appellants and the ratio of Bhoormull's decision will therefore apply. We, therefore, reject the contention of the learned Counsel on this point.
37. We have come to the conclusion that there was no basis for enhancing the value of the car from Rs. 4 lakhs to Rs. 7 lakhs. Since the fine in lieu of confiscation and the penalties are based on the value of the offending goods, we consider appropriate reduction as indicated below :-
(a) Fine in lieu of confiscation to be reduced from Rs. 4 lakhs (Rupees Four lakhs) to Rs. 3 lakhs (Rupees three lakhs);
(b) Penalties to be reduced as under :-
(i) Shri Shally Thapar - From Rs. 2 lakhs (Rupees two lakhs) to Rs. 1 lakh (Rupees one lakh)
(ii) Shri Haren P. Choksey - From Rs. 3 lakhs (Rupees three lakhs) to Rs. 1,50,000 (Rupees one lakh and fifty thousand)
(iii) Shri Inderpal Singh alias Pali - From Rs. 50,000 (Rupees fifty thousand) to Rs. 25,000 (Rupees twenty five thousand).
38. Subject to these modifications, the appeals are otherwise rejected.
Sd/-
(N.K. Bajpai) Date : 08-9-1992. Technical Member Jyoti Balasundaram, Member (J)
39. I have carefully perused the order recorded by Shri N.K. Bajpai, Technical Member and I concur with him regarding his findings in respect of appellants No. 1 and 2 i.e. Shri Shally Thapar and Shri Haren P. Choksey. I am however, unable to persuade myself to agree with Shri Bajpai's finding in respect of appellant No. 3 i.e. Shri Inder Pal Singh for the following reasons :
(i) There is nothing on record to prove that the appellant No. 3 knew or had any reason to believe that the Mercedez Benz Car bearing Registration No. DBB-782 was a smuggled one. In fact in the show cause notice [Para No. 22 (e) at internal Page 12] it has been alleged that "it also appears that Shri Haren P. Choksey and Shri Shally Thapar were aware of the fact that the vehicle was not legally imported into the country." The name of the 3rd appellant does not appear here and hence his action does not fall within the scope of Section 112(b) of the Customs Act, 1962 so as to warrant imposition of penalty.
(ii) The adjudicating authority's finding against the 3rd appellant that he had got the registration and ownership of the illegally imported car changed is based upon an incorrect premise i.e. the alleged admission of appellant No. 3 in his statement dated 13-1-1989. Nowhere in the statement does the 3rd appellant admit that he got the ownership of the Car transferred and his statement is to the effect that he got only the Registration transferred and withdrew himself afterwards. Para 9 of the show cause notice which is a reproduction of the statement of Shri Inder Pal Singh dated 13-1-1989 records as follows :
"that after this he was asked by Shally to get the car transferred in his name (Shally's) but he (Pali) refused as the Registration authority people wanted customs clearance or Bond Clearance papers, for the work, which were not given to him; that he did not have any knowledge if the vehicle was subsequently got transferred by (Shally) in his name or not."
(iii) Moreover, at internal Page 25 of the impugned order at Para 7.3, the Additional Collector of Customs has given a finding that the appellant No. 3 rendered his help in getting the registration of the car transferred for a fee of Rs. 400/-. Appellant No. 3 was not involved in the preparation of any bogus documents and his action in getting the registration transferred was posterior to the completion of the act of sale of the car by Sh. Haren P. Choksey to Sh. Shally Thapar which deal was finalised at Bombay.
In view of the above I hold that appellant No. 3 is not liable to penal action under Section 112 and, I, therefore, set aside the penalty imposed upon him.
Sd/-
(Jyoti Balasundaram)
14-9-1992 Judicial Member
40. In view of the following difference of opinion between the two Members, the matter is referred to the President for reference to a third Member for resolving the difference of opinion:
"Whether in the facts and circumstances as set out above, penalty imposed on the 3rd applicant is required to be reduced (as proposed by M(T-NKB) or whether the entire penalty is liable to be set aside (as proposed by Learned Member (Judicial)."
Sd/- Sd/-
N.K. Bajpai) (Jyoti Balasundaram)
14-9-1992 Technical Member Judicial Member
The point of difference is referred to Shri. P.K. Kapoor, Member (T).
Sd/-
Harish Chander
22-9-1992 President
P.K. Kapoor, Member (T)
41. The learned advocate Shri K.K. Anand appearing on behalf of Shri Inder Pal Singh referred Para 9 of the show cause notice and contended that his client had admitted that he had got only the registration of the vehicle changed from that of Bangalore to Delhi. He added that on being asked by Shri Shally Thapar to get the car transferred in his name he had refused since the Registration Authority wanted customs papers for such transfer which were not given to him, and he was not aware whether the vehicle was subsequently transferred in the name of Shri Shally Thapar. The learned counsel stated that Shri Inder Pal Singh had also stated that Shri Haren P. Choksey had paid him only Rs. 400/- for the services rendered by him. In this regard he also referred to charge (d) framed in the show cause notice and contended that it follows that the allegation against his client was that he had rendered assistance only in regard to the transfer of the registration of the vehicle from Bangalore to Delhi and there was no charge that the transfer of the vehicle in the name of Shri Shally Thapar was also done with his assistance. He also referred to charge (e) framed in the show cause notice wherein it was alleged that Shri Haren P. Choksey and Shri Shally Thapar were aware of the fact that the vehicle was not legally imported into the country and contended that there was no allegation that his client had knowledge regarding illegal importation of the car into the country. Shri Anand stated that the adjudicating authority had also observed in Para 7 of the impugned order that his client had rendered help only in regard to the change of the registration of the vehicle from Bangalore to Delhi for which he was paid a sum of Rs. 400/-. He argued that in view of the fact that there was no evidence that his client was in any way concerned with the transfer of the registration of the vehicle in the name of Shri Shally Thapar he could not be held liable for penalty under Section 112 of the Customs Act, 1962.
42. On behalf of the revenue the learned SDR Shri Ashok Mehta placed reliance on the findings of the Assistant Collector in the impugned order.
43. I have examined the record of the case and considered the submissions made on behalf of both sides. It is seen that in his statement dated 13-1-1989 Shri Inder Pal Singh had admitted having assisted Shri Haren P. Choksey, only in regard to the registration of the vehicle in question from Bangalore to Delhi. He had also stated that he had refused to render assistance in getting the vehicle transferred in the name of Shri Shally Thapar since the customs clearance documents which were necessary for this purpose were not available and he did not have any knowledge as to how the vehicle was subsequently transferred in the name of Shri Shally Thapar. He also claimed that for the services rendered by him in connection with the transfer of the registration of the vehicle from Bangalore to Delhi he was paid a sum of Rs. 400/- only.
44. Having regard to the facts outlined above I am inclined to agree with the learned Member (Judicial) that the finding of the adjudicating authority against the third appellant that he had got the registration and ownership of the illegally imported car changed is based on incorrect premise i.e. alleged admission of the appellants, whereas he had nowhere admitted that he got the ownership of the car transferred. The appellant's action in getting the registration of the car transferred from Bangalore to Delhi was undeniably subsequent to its importation into the country and its registration in India at Bangalore. Therefore, he could not have had any reason to believe that it was liable for confiscation under Section 111 of the Customs Act, 1962. I, therefore, agree with the finding of the Member (Judicial) and hold that the third appellant is not liable to penal action under Section 112 of the Customs Act, 1962. I, therefore, set aside the penalty imposed on him.
Sd/-(P.K. Kapoor)
Dated 22nd October, 1992 Member (T)
45. In view of the majority decision the penalty imposed upon the 3rd appellant, Shri Inder Pal Singh (Appeal No. C/1901/91-NRB) is set aside.
In respect of Shri Shally Thapar (Appellant No. 1-C/1945/91-NRB) and Shri Haren P. Choksey (Appellant No. 2 C/1885/91-NRB) the appeals are disposed of in terms of Para 37 (Page 36) of the order.