Customs, Excise and Gold Tribunal - Mumbai
Dinesh T. Shah vs Collector Of Customs on 23 October, 1990
Equivalent citations: 1991(55)ELT547(TRI-MUMBAI)
ORDER P.K. Desai, Member (J)
1. The present appeal is directed against the Order-in-Appeal No. 7/90 BP issued on 6-2-1990 by the Collector of Customs (Appeals) Bombay, confirming the Order-in-Original No. DRI/BZU/122/13/88 / S/14-4-228/88 dated 19-4-1989 by the Deputy Collector of Customs (P), Bombay, ordering absolute confiscation of Mercedes Benz Motor car bearing registration number MAR 5565, recovered from the Appellant, vide Section lll(d) of the Customs Act.
2. Pursuant to the information that the subject car imported into India under Carnet facility in the year 1982-83, was not duly re-exported, and was in possession and use of the appellant, the. same was ordered detention on 27-3-1989. The said car at that time stood registered in the name of the appellant with the Regional Transport Authorities at Bombay. The investigations however revealed that originally, the said car was shown as registered with RTO Hyderabad in the name of one Hanif Kaifiji Sheikh of Hyderabad, under Registration No. ABR 5371. However, further investigations also revealed that said registration was a fake one, as the said Registration number was allotted to one Bajaj Super scooter belonging to one Dr. G. Ramulu. It was also revealed that the said car was then shown in the said Registration book as stood transferred to the appellant and the address of the appellant was shown as that of Hyderabad, though it was never his address. The investigations also disclosed that the Appellant vide his letter dated 10-9-1983, applied to the RTO Bombay to transfer the said vehicle to Bombay but when required to procure NOC from RTO Hyderabad, he did not do so and instead advanced a false excuse, but furnished an undertaking acknowledging his personal liability. The car was therefore seized on 2-5-1988. Meanwhile the statement of the Appellant was recorded on 29-3-1988 where he is reported to have stated that he purchased the subject car from one Majeedbhai about four years back, when he was told that the same was purchased by Hanif Kaifiji Sheikh from STC Delhi. Admitting that he got the said car transferred to his name giving his Hyderabad address, he conceded that he never stayed there. He also admitted to have no papers except Registration book, relating to the vehicle, with him. In his subsequent statement recorded on 20-6-1989, the appellant is reported to have stated that he purchased the subject car from one Pravin Thakkar, introduced to him by one Majeedbhai and said Pravin Thakkar represented before him that the subject car was purchased from STC. He stated that after consultation with his father Trilokchand Shah and negotiating the price, which was paid by his father, said Pravin Thakkar suggested to get the car transferred in his name at Hyderabad itself and therefore, took his signature on blank transfer form and then brought back the registration book, showing the car to have been transferred to him, and that thereafter in 1983, he moved for transferring the same Registration from Hyderabad to Bombay. Statement of Abdul Majeed was also recorded, who admitted to have introduced the appellant to Pravin Thakkar but pleaded no further knowledge about the deal. Though summons were sent to Trilokchand Shah and Hanif Kaifiji Sheikh, to appear with relevant documents if any, there was no response from them. Mr. Pravin Thakkar was reported to have died in 1983 and as such the officials could not avail of any explanation from him. A show cause notice was ultimately issued to the Appellant and others alleging contravention of the provisions of the Import Control Order, 1955 read with Section 3(1) of the Imports & Exports (Control) Act, 1947, and consequent violation of the provisions of the Customs Act, and they were called upon to show cause why the subject car should not be confiscated vide Section lll(d) of the Customs Act and why penalty under Section 112 should not be imposed on them. In reply thereto, the Appellant denied the charges and pleaded that contravention, if any, was committed by the importer of the car under Car-net procedure and the department had made no investigations, in that regard. He also pleaded that there was no clear evidence available to show that the subject car was the same as the one imported under carnet procedure. Trilokchand Shah also filed his reply and submitted that his son was an adult one and he might have asked for money for purchase of the car but the transaction was not within his direct or indirect knowledge. Abdul Majeed also filed reply denying the charges, where as notice to Hanif Sheikh could not be served. The adjudicating authority after granting personal hearing and considering the evidence available on record, held the subject car liable to confiscation under Section lll(d) of the Customs Act and accordingly ordered absolute confiscation; however, he did not impose any personal penalty.
3. The appellants preferred an appeal to the Collector of Customs (Appeals) against the said Order and at the personal hearing appeared with CHA Mr. M.I. Khatri, and pleaded that the car did not belong to him because he had not yet paid money, and that the car was got transferred to his name on the suggestion made by said Pravin Thakkar. The appellant seems to have contended before the said Appellate Authority that he was filing appeal since it was his moral obligation to make the payments for the car to the heirs of deceased Pravin Thakkar and pleaded that the payment was withheld till all the relevant papers regarding its purchase from STC were delivered. The Appellate Authority, after considering all the submissions made before him as also the evidence available on record, came to the conclusion that the contentions raised were not acceptable and confirmed the order-in-original.
4. Mr. M.T. Khatri, who represented the appellant before us, raised a contention that it was not proved that the subject car was the same as the one imported under Carnet procedure, as the Engine number in the Carnet Register and the seizure Panchanama did not tally and that the subject car has been wrongly confiscated. He however conceded that till this day, the appellant had no documents available with him to show the initial purchase of the car through STC. Mr. Khatri also maintained that the appellant had so far not paid the purchase price and it was only on the moral obligation on his part that the Appellant was challenging the order.
5. After hearing Mr. Khatri for the appellants, we did not call upon the other side to make the submissions.
6. The main thrust of the submission of Mr. Khatri was on the point that the subject car was not proved to be the same as the one allegedly imported under the Car-net procedure. Before examining the said contention, it may be observed that the subject car is Mercedez Benz which is neither manufactured nor assembled in India. It is a complete foreign origin car, which could be imported only on obtaining CCP from the authorities. No evidence in that regard is produced. The Appellant has also raised a plea that it was represented to him that the said car was sold by STC but he has till this day not procured or produced any documentary evidence in this regard nor has he brought any evidence to indicate that he ever made any efforts, since the date of its purchase, to verify that aspect.
7. Mr. Khatri invited our attention to the Panchanama of seizure drawn on 2-5-1989, indicating that the engine number mentioned therein is 6170160180-G and Chassis number is WDB-123-130-2225 1057, whereas in the Garnet Register the engine number is 61791222 135880 and Chassis number is 123 2225 1057 and pleaded that as the engine number is distinct, the subject car cannot be the same as the car imported under the said Garnet procedure. The appellant has, however also produced the copy of the duplicate of the Registration Book issued by RTO Bombay, where the engine number shown is G-170-110-0601 and chassis number as 123-130-22251057. Though there is some difference in the engine number, which, for the reasons that we discuss hereinafter, is not a major one having significant effect, the chassis number in all the three practically tallies. The Motor vehicle is identified only on its chassis number, and when the chassis number is the same, the doubt sought to be raised by the Appellant does not stand to any reason. Variance in the engine number is not confined only to the entry in Garnet Register and to Panchanama. It even extends to the RTO Registration Book, produced by the Appellant. It is not the Appellant's case that the Registration Book does not pertain to the subject car. Inspite of that when there is variation in the engine number, it could be presumed that number may not be properly legible. The first three digits of the number as recorded in the Panchanama and Garnet Register namely "617" tally. In the registration book, the number is recorded as commencing with word 'G' which is not found in other two documents. A possibility cannot be ruled out that figure '6' may have been read as 'G'. If that is read as '6' then the first three digits are the same in all the three. Last two digits in Panchanama and Garnet Register namely figure '80' tally but surprisingly the said last digits are not recorded in the Registration Book. The position could have assumed different shape, had the number as recorded in the Panchanama tallied completely with the one in the RTO Registration Book and the number in Car-net Register was entirely different. We do not have on record the original Garnet Certificate but only the entry made in the Register and from what is discussed hereabove, a strong probability exists that at every stage, the human error has crept in. The difference in engine number is therefore reduced to insignificance, particularly when the chassis number is correct and tallies. We therefore have no hesitation in holding that the subject car is the same as imported under the Garnet procedure. We may once again observe that no evidence is adduced by the Appellant to show that the subject car could have been a licitly imported one. The contentions raised by the Appellant under the circumstances cannot be accepted and is rejected.
8. We may also at this stage observe that it is duly established that the alleged initial registration of the subject car with RTO Hyderabad itself is fake as the investigation has revealed that registration No. ABR 5371 is allotted to a Bajaj Super Scooter owned by one Dr. G. Ramulu and the person in whose name the car is reported to have been registered, has not come forward to provide any explanation. As already mentioned above, no document is brought on record to show its sale through STC. The appellant has even not produced NOC from RTO Hyderabad at the time of registration with RTO, Bombay.
9. Cumulative effect of the evidence as discussed above makes us draw an irresistible conclusion that the subject car is the one illicitly imported/retained in India and as such liable to confiscation under Section 111(d) of the Customs Act.
10. It is however surprising to note that inspite of this factual position an entry appear in the Garnet Register to indicate that the said motor car has been duly re-exported. The question as to how such an endorsement came to be made or how the said motor car having already stood re-exported, came to be re-imported are the one to be examined by the competent authorities, to ascertain whether any officer was also involved.
11. We could have examined the tenability of the order of absolute confiscation in the light of the provisions of Section 125 of the Customs Act, but here, the appellant has emphasised that so far he has not even paid the purchase price, and has pleaded that it was his moral obligation to pay the same as and when demanded by the heirs of late Mr. Pravin Thakkar. When the sale price has not been paid, the appellant could not have any personal interest in the vehicle and when the vehicle is not proved to have been licit-ly imported, and is confiscated on the said ground, the question of moral obligation and fulfilment thereof does not arise, as it would provide an absolute and genuine defence against any such demand. Under these circumstances we do not deem this as a fit case to exercise discretion invested under Section 125 of the Customs Act.
12. When the appellant has taken a consistant stand of his having not paid the purchase price, before the Collector (Appeals) as well as before us, we need not examine the other aspects. However, for the purpose of keeping on record, we may also observe that even otherwise, the involvement of appellant does not appear to be as innocent as is attempted to be impressed upon. The Appellant has the subject car with him since 1983 and it is his plea that he was duped to believe that the same was sold by STC. The question remains unanswered as to what did he do for about five years to get the relevant documents, particularly when the payment of purchase price depended on the same. It is also note worthy that he could not produce NOC from RTO Hyderabad, though he did undertake to do so at the time of registration of the car with RTO, Bombay. Even on payment of purchase price, he has initially given version inconsistent with the plea now raised, by stating that his father had paid the purchase price. His father Trilokchand has however in his reply to show cause notice, pleaded ignorance. Inconsistent and conflicting versions given by the appellant in basing his defence would provide a painter to appellant involving in purchasing the subject matter car knowing the same to have been not licitly imported, and we would have been justified in not extending benefit of the provisions of Section 125 of the Customs Act, even on that count. Here however, with the Appellant pleading to have not purchased the same on payment of purchase price, and seeking release only on his alleged moral obligation, the decision from that angle becomes unnecessary.
13. In the result, we see no reason to interfere with the conclusion drawn and final order passed by the Authorities below and hence we dismiss the appeal.