Custom, Excise & Service Tax Tribunal
Shri Ashwini Kumar Tandon vs Commissioner Of Customs(P), Mumbai on 30 September, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI APPEAL NO.C/799 & 800/09 (Arising out of Order-in- Original No.CCP/ADJ/SR/11/2008 dtd.30.03.09 passed by the Commissioner of Customs(Prev.),Mumbai ) For approval and signature: Honble Mr.Sahab Singh, Member(Technical) ============================================================
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
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Shri Ashwini Kumar Tandon
Anoop K.Gandhi
:
Appellants
VS
Commissioner of Customs(P), Mumbai
Respondent
Appearance
Ms. Kiran Doiphode, advocate for Appellant
Shri A.K.Prabhakar, S.A.R. for Respondent
CORAM:
Mr.Sahab Singh, Member(Technical)
Date of hearing: 30/09//2011
Date of decision 30/09 /2011
ORDER NO.
Per : Sahab Singh
These appeals are filed by the appellants against the order passed by the Commissioner of Customs (Prev.), Mumbai.
2. The Order-in-Original is passed by the Commissioner in pursuant to the remand direction of this Tribunal contained in Final Order No.C.I/1412-1415/WZB/2001 dated 16.5.01 in appeal filed by Shri Ashwini Kumar Tandon, Anoop Gandhi, Anand Giri and Vinod Chandra. In the present case only Shri Ashwini Kumar Tandon and Anoop Gandhi are appellants in the present appeals.
3. The brief facts of the case are that in pursuance to the information that smuggling of car of foreign origin was taking place by misusing the facility provided under Transfer of Residence Rules, the officers of the Mumbai Customs have seized 12 cars in the month of May/June/July 1998. Out of these 12 cars, 2 cars viz. 1990 Toyota Sera EXY-10-000 4338 and 1991 Toyota Corsa-NL-40 000 14021 are the subject matter of de novo adjudication. These cars were imported by the syndicate in the name of different passengers who were not the actual owners of the cars but were used as a front to import cars in their names as they were eligible to avail T.R. facilities. The Commissioner in the order finds that the T.R. facility was misused by the syndicate consisting of Shri Ashwini Kumar Tandon, his brother Shri Satish Tandon and Shri Anoop Gandhi who formed a company M/s. ESS International in April, 1997 in order to arrange import of cars in the name of Indian passengers who were eligible to avail T.R. facilities. D.K.Jain residing in Delhi who was also part of the arrangement. They made use of Kuldip Singh to locate and contact passengers who would agree for the cars to be imported in their names. If they were agreeable they would sign in blank documents which were required to import and clearance of the cars. Gandhi and Ashwini Kumar Tandon placed orders for import of vehicles on a company Inpub in Japan which belonged to Shri Satish Tandon, specifying the name of the passengers in whose names the invoice of the car was to be done. The payment of the car was made by Shri D.K.Jain. The foreign exchange required for payment of customs duty was arranged to be transferred to the account of the passengers by Satish Tandon. On its import, car would be sold, and the price paid for the purchase would be sent to Inpub by illegal channels. Vinod Chandra and Anand Giri were two such eligible persons who agreed to import the cars in their names. On this basis, the Commissioner had passed the Order-in-Original in respect of the two cars imported under the name of Vinod Chandra and Anand Giri by the syndicate involving Shri Ashwini Kumar Tandon and Shri Anoop Gandi and imposed penalty of Rs. 2.5 lakhs each on Ashwini Kumar Tandon and Anoop Gandhi.
4. The ld.advocate appearing for the appellants submitted that the Commissioner has not followed the CESTAT direction in full inasmuch as there are striking similarities in the Public Notices, one permitting import of gold and another permitting import of car. Both car and gold were restricted items for import and in case of import of gold the passenger should have stayed six months abroad whereas in the case of import of car, the importers should have stayed abroad for 2 years and there was no restriction for sale of imported gold and car in the open market and the Commissioner was not correct in holding that the imports of cars are covered under para A and the Condition No.4 of the Public Notice was not available to category A person. She further submitted that the Commissioner has erred in relying upon the statement of Anoop Gandhi. If the statement of Anoop Gandhi is considered by the department, then it was D.K.Jain who was the real importer of the car imported and D.K.Jain was exonerated in the original proceedings whereas the present appellant was penalized. It was not fair on the part of the Commissioner to exonerate D.K.Jain and to penalize the present appellants. He further contended that passengers in whose names the cars were imported were the bona fide importers of the cars and none of them had told that they did not sign the import documents or open bank accounts in their names. Merely stating certain facts contrary under fear it cannot be inferred that they were not the importers of the said cars. She further submitted that the Commissioner has given option to redeem the car to Vinod Chandra accepting that Vinod Chandra is the importer and Commissioner cannot take contrary stand in the case of import by others. She also submitted that the finding of the Commissioner that he cannot attribute any reason for exoneration of D.K.Jain or apply the same to the present appellants as the original proceedings relating to D.K.Jain is not before him, is not correct. She also submitted that Anoop Gandhi in his reply dated 23.6.99 stated that he had filed retraction in the court when he was produced before the Learned Metropolitan Magistrate, after his arrest. Since all the statements given by Anoop Gandhi were retracted before the Metropolitan Magistrate, his original statement cannot be relied on and the penalties cannot be imposed on the appellants based on the contents of the statements. The ld.advocate submitted the following case laws in support of the case:
(1) Haroon Haji Abdulla vs State of Maharashtra 1999(110)ELT 309(S.C.). In this case it was observed by the Court that retracted confession must be looked upon with greater concern unless the reasons for having made it in the first instance ( not for retraction as erroneously stated in some cases) are on the face of them false. Once the confession is proved satisfactorily any admission made therein must be satisfactorily withdrawn or the like from someone in authority.
(2) Joy vs. Regional Transport Authority 1999(105)ELT 275(Ker.). In this case, the High Court has stated that judicial discipline demands consistency in rendering judgments even in illegality . A judicial officer may err and pass illegal orders, but he shall not err in consistency. Relying on this order, the ld.advocate submitted that the order passed by the ld.Commissioner is in consistent in his findings.
5. Ld. S.A.R. appearing for the Revenue defended the Order-in-Original and submitted that both the appellants were part of the syndicate which was involved in misusing of the T.R. facility. They were selecting some passengers on whose names they will import the car. The passengers were not having such means that they can import car in their names. Only their passports were misused by Ashwini Kumar Tandon and Anoop Gandhi and those passengers were being paid some nominal amount for giving their passports and for signing documents for import the car. He submitted that the appellants are the main mastermind of importing the cars from Satish Tandon in Japan who was transferring foreign exchange in the name of passengers for purpose of payment of duty. He, therefore, submitted that the Commissioner has rightly imposed the penalty on both the appellants.
7. After hearing both sides, I find that in the case of Ashwini Kumar Tandon, it is a fact that Satish Tandon was his brother. A firm in name of M/s. ESS International Pvt.Ltd., New Delhi was formed where Ashwini Kumar Tandon, Satish Tandon, Anoop Kumar Gandhi and his son Vikram Gandhi are Directors and it operates from Residential address of Ashwini Tandon. He was having a business of buying and selling of used cars on commission basis and some representatives of the passengers who wanted to import cars under T.R. facility used to approach him for advice and help and release of the cars from customs and to sell of the cars in India on commission basis. I also find from the statement of Anoop Gandhi that Ashwini Kumar Tando used to place orders for import of vehicles on Inpub in Japan giving names of the passengers in whose names the invoices are to be issued and passports procured through Kuldip Singh. Therefore, the cars were sent by Inpub for which no payment was made. It is also noticed that the customs duty was also transferred to the accounts of the passengers by Satish Tandon of Inpub. After clearance of the cars from the customs, the imported cars were sold in the market. After sale of car, money was deposited in account of passengers. Thereafter, cash was withdrawn and taken by Ashwini Tandon for sending to Japan using illegal channels. All these arrangements were made to circumvent the provisions of Transfer of Residence facilities which are applicable to the persons who are coming back to India for permanent settlement as the import of cars otherwise is not possible. I find that Ashwini Kumar Tandon and his brother Satish Tandon in liason with Anoop Gandhi had devised this mechanism for import of the cars in the name of various Indian passengers who qualify for T.R. facility and these passengers were made mere tools by this group so as to facilitate the cars to import as the passengers were eligible for importing cars. Ashwini Kumar Tandon has played an active role in whole chain.
8. It has been contended by the ld.advocate that Anoop Gandhi has retracted his stagements given before the Customs when he was produced before the Metropolitan Magistrate. The Commissioner in para 18.3 of his order has discussed the issue of retraction of the statements. In the application filed by department for rebuttal of the retraction before the Metorpolitan Magistrate, it was contended by the department that the allegations were baseless and all the statements were recorded under the provisions of Sec.108 of the Customs Act voluntarily in his own handwiting and he was not subjected to any force, coercion. He has given a finding that the Court had not taken any cognizance on his retraction and threat as made in the bail application. The fact that the statements were made in his handwriting which was confirmed by the Deputy Government Examiner in its report. Ratio of cited case on retraction is not applicable to facts of this case. I find that the Commissioner has analyzed the roles made by Anoop Gandhi and Ashwini Kumar Tandon and has come to the conclusion that they were actively involved and concerned in the dealing of import and clearance of the cars through customs and the finding of the Commissioner that Anoop Gandhi and Ashwini Kumar Tandon are liable for penalty is sustained.
9. Ld.counsel also stated that impugned order is not consistent as Shri D.K.Jain was exonerated while penalty imposed on Ashwini Kumar Tandon and Anoop Kumar Gandi and Shri Vinod Chandra was given option to redeem the car whereas Anand Giri was not given such option. I find that Shri D.K.Jain was exonerated by the Commissioner in first proceeding and this appeal is not against that order. As regards imposing redemption fine on car imported by Vinod Chandra and not doing so for car of Mr.Anand Giri, I find neither Vinod Chandra nor Anand Giri are in appeal before me. Only Ashwini Tandon and Anoop Gandi are in appeal against imposition of penalty on them. Therefore, facts of cited case of Kerala High Court are different from the present case.
10. In view of the above, the appeals filed by the appellants are dismissed.
(Pronounced in court) Sahab Singh Member(Technical pv 9