Customs, Excise and Gold Tribunal - Bangalore
Shri V. Abdul Rehman Musaliyar And Shri ... vs Commissioner Of Customs, Cochin on 15 May, 2001
Equivalent citations: 2001(133)ELT145(TRI-BANG)
ORDER
Shri S.S.Sekhon
1. These two appeals are filed by Shri M.T. Musaliyar (hereinafter referred A-1) and V Abdul Azeez Malappuram (hereinafter referred to as A-2) against the order of Commissioner(Appeals), who vide the impugned orders upheld 'the action taken of seizure and adjudication of a "Toyota Pardo Jeep" cleared by the Customs on documents of vehicle Registration produced & clearance claimed under benefit of AN 3/1997-2002 dt 31.3.97 on BE NO.4556 DT 160798 filed through M/s Ultimate & Shipping Agency, CHAD in Kochi customs House on behalf of A-1. The car subsequent to its clearance on payment of duty was seized from the premise of son of A-1 at Calicut on 24.07.98 by Officers of DRI as they had obtained evidence that the vehicle with engine capacity 2482 CC was imported in violation of the ITC Public Notice in as much as said vehicle was not in use of the imparter A-1, as claimed at the time of clearance, for a period of more than one year as stipulated in the said PN. The same was therefore to be considered as cleared without a Valid Import License on mis-declaration made by submitting false registration documents resulting in liability to confiscation of the Vehicle under section 111(d) & 111(m) of the Customs Act 1962. It was further appealed that A-2 had assisted inn the clearance of the car in as much as it had been purchased by him and the duty for the same was financed from his NRI accounts. That A-2 had intended to compensate A-1 for lending his passport for the said import. The Commissioner (Appeals) upheld the confiscation and redemption fine of Rs 6,00,000/- & the penalty of Rs 1,50,000/-on A-1 and Rs3,00,00/-and A-2 under Section 112(a) of the Customs Act 1962.
2. We have heard both sides and considered the matter and find:
(a) The Commissioner's reliance on Jan Sudh Vanaspathi Case (1996)(86) ELT 460(SC) cannot be found fault with. Even if the clearance order under Section 47 of the Customs Act has been passed, a riview of the same is not called for, if te clearance was obtained on misdeclaration and fraud as in this case. The clearance was effected on the grounds of the car being in the use of A-1 for the stipulated period in the Public Notice based on Registration & other documents produced. However subsequent evidence obtained by DR indicate that the car was imported into Dubai from Japan 7 cleared into Dubai on 29.06.98. It is not the claim of A-1 or A-2 that the same was in the use of A-1 in Japan or anywhere else other than Dubai. The mere fact that it was registered in Unu Al Quwani on 4.01.97 in itself cannot lead to establishing its use by A-1 if the car was in Japan earlier to 29.06.98. Thus import without a license on basis of the PN was therefore not permissible. In absence of an Import License it is liable for confiscation.
(b) The learned advocate before us, and A-1 before the Commissioner(Appeals) did not seriously contest the liability of confiscation. The contest is limited to only the question of Redemption Fine. We find that both the lower authorities have not determined any market value/market price and the Margin of Profit or indicated the CIF value and other post clearance cost, to determine and arrive at the adequacy or otherwise of the Redemption Fine. the car was cleared in July 1998 without determining these parameters, essential to determine fine under Section 125 of Customs Act 1962. No purpose will be served by remanding the matter both to the original authorities to redetermine the same as was urged before us since (SIC) without such a determination. The Advocate has cited the decision of this Bench for a similar Model vehicle, cleared through Kochi at the same time i.e.June 1998. (N.K. Kutty Pushpagandham Vs CC Cochin(2001 (129)ELT 346(Tri) Bang) and Relying on the same dissidence submitted, we should consider Redemption fine of Rs 3 lakhs to be adequate in this case. We find that was also a seizure of a Toyota Land Cruiser in June 1998 seized after clearance. We would therefore consider Rs 3 lakhs to be adequate fine under Section 125 of Customs Act 1962.
(c) As regards penalty, the case relied by learned Advocate(Supra) the penalty on importer therein was reduced to Rs 1,00,000/- We would consider the liability on A-1 under 112(a) to be the same.
(d) As regards penalty on A-2, for admittedly having purchased and financed the import of the car,which is not being denied, we would consider the penalty under Section 112(b) to be the same as Rs 1,00,000/-. Since the abetter cannot be penalized more than the original Importer more so when the vehicle was not for A-2, but seized form the son of A-1.
(e) In view of our findings, we do not find the other case law relies by the appellants to be relevant to arrive at a decision in this case.
3. In view of our findings, we allow the appeal by reducing the Redemption Fine to Rs. 3 lakhs and penalties to Rs 1,00,000/- each on A-1 & A-2 under Section 112(a) & 112(b) of the Customs Act 1962 respectively.
Ordered accordingly.
(pronounced in open court on 15-05-2001)