Custom, Excise & Service Tax Tribunal
Umer Farooque Mohammed vs Cochin-Cus on 9 October, 2023
C/1374/2011
CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL
BANGALORE
REGIONAL BENCH - COURT NO. 1
Customs Appeal No. 1374 of 2011
(Arising out of Order-in-Appeal No.9/2011 dated
9.2.2011 passed by the Commissioner of Customs
(Appeals), Cochin.)
Umer Farooque Mohammed
Gouse
Hajira Mansion, Appellant(s)
Moosa Nagar P.O
Near Isoph Masjid,
Bhatkal - 581 320.
Versus
The Commissioner of Customs
(Appeals) Respondent(s)
Customs House, Cochin - 682 009.
Appearance:
Mr. Baby M.A, Advocate For the Appellant Mr. K. A. Jathin, AR For the Respondent CORAM:
HON'BLE DR. D.M. MISRA, MEMBER (JUDICIAL) HON'BLE MRS. R. BHAGYA DEVI, MEMBER (TECHNICAL) Final Order No. 21166 /2023 Date of Hearing: 09.10.2023 Date of Decision: 09.10.2023 Per : R. BHAGYA DEVI The appellant, Shri Umer Farooque Mohammed Gouse, imported Volks Wagon Beetle Car on 4.11.2008. Based on the DRI investigations, it was found that Mumbai based operator Shri Parvinder Singh alias Laljee Bhatia was the actual importer. Page 1 of 5
C/1374/2011 He was involved in the evasion of Customs duty and breach of prohibitions on the import of high segment cars by misusing the conditions of Import Licensing Note under Chapter 87 of the ITC (HS) Classification of Export & Import items by manipulated the purchase and registration documents of these cars. Statements were recorded from Laljee Bhatia who informed that two vehicles one Volks Wagon Beetle Car and one Mercedes Benz Smart Car under transfer of residence facility in the names of some other passengers. Since Shri Umer Farooque Mohammed Gouse was not the actual importer, summons was issued to Shri. Umer Farooque Mohammed Gouse, who refused to appear before the investigating officers. He filed a writ petition before the Hon'ble High Court of Kerala and the Hon'ble High court issued orders directing him to appear before the Additional Director of DRI, Mangalore. In spite of these directions, Shri Umer Farooque Mohammed Gouse failed to appear and the matter was once again heard by the Hon'ble High Court of Kerala on 27.9.2009 where the Hon'ble High Court expressed dissatisfaction on the explanation given by the advocate for non-appearance of Shri Umer Farooque Mohammed Gouse before DRI. Finally, based on the directions of the Hon'ble High Court, Shri Umer Farooque Mohammed Gouse appeared before DRI, Mangalore on 17.8.2009 along with his advocate. In his statement, he submitted that he was a school dropout, working as a coolie in Saudi Arabia. He further stated that he visited UAE in 2005 and visa was arranged by his wife's brother and he was in UAE for 5 years as a cook. When DRI questioned him whether he owned a Page 2 of 5 C/1374/2011 car or he had a driving license at UAE; for this, he replied that he did not have a driving license either in UAE or in Saudi Arabia and he never owned a car in UAE. Based on the detailed investigations by DRI, it appeared that the Volks Wagon Beetle car was neither purchased nor was possessed by the appellant and a fraudulent attempt was made by Laljee Bhatia to import the subject car by manipulating the shipping documents in the name of the appellant. Thus, the whole import happened in the violation of the conditions stipulated under the import licensing notes under Chapter 87 of the ITC (HS) classification of Export and Import for free import of cars and in violation of the provisions of Rule 2(c) of the Foreign Trade (Development & Regulation) Rules, 1993. Based on these findings, both the original authority and the Commissioner (A) absolutely confiscated the Volks Wagon Beetle car under Section 111(d) and 111(m) of the Customs Act, 1962 read with the provisions of Section7 of the Foreign Trade (Development and Regulation) Act, 1962 and Rule 2(c), Rule 11, Rule 14(1) and Rule 14(2) of the Foreign Trade Regulation Rules 1993 and imposed a penalty of Rs.2,00,000/- on Shri Laljee Bhatia under Section 112(a) of the Customs Act, 1962 and penalty of Rs.1,00,000/- on Shri Umer Farooque Mohammed Gouse under Section 112(a) of the Customs Act, 1962.
2. The appellant had filed an appeal on the ground that the order directing absolute confiscation is illegal and the penalty impose is also illegal and against the principles of natural justice. Page 3 of 5
C/1374/2011
3. Today, when the matter came up for hearing, the advocate on behalf of the appellant submitted that the car has been auctioned and penalties have been adjusted against the sale proceeds of the auctioned car and hence nothing survives.
4. The learned Authorised Representative on behalf of the Revenue reiterating the findings of the Commissioner (A) submitted that since the appellant in this case is not the actual importer but the penalty imposed on him is justified.
5. From the records and statements, it is amply clear that the actual importer was Laljee Bhatia. Shri Umer Farooque Mohammed Gouse had imported the car in his where all the documents were arranged by Laljee Bhatia. The DRI investigations have clearly proved the fact that the car had been imported in violation of the conditions stipulated under the import licensing notes under Chapter 87 of the ITC (HS) classification of Export and Import for free import of cars, which has been rightly confiscated by the authorities concerned. There is no appeal by Laljee Bhatia neither on the absolute confiscation of the vehicle nor on the penalty imposed on him. The appellant has also not placed anything on record to prove that the car belonged to him. Moreover his attitude in not cooperating with the investigating agencies until directed by the Hon'ble High court of Kerala and his statements before the authorities clearly prove that he was not the importer. There is nothing on record placed before us today to claim that the vehicle belonged to him. Page 4 of 5
C/1374/2011 Since the vehicle has already been auctioned and the sale proceeds have been adjusted against the penalties, therefore, nothing survives in this appeal. Accordingly, the appeal stands dismissed.
(Operative portion of the Order was pronounced in Open Court.) (D.M. MISRA) MEMBER (JUDICIAL) (R. BHAGYA DEVI) MEMBER (TECHNICAL) rv Page 5 of 5