TaxTMI 
TaxTMI 
2003 (1) TMI 600
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....s Customs duty and got the car registered in her name with registration No. KL-03-D-9810. (b) The DRI consequent to an intelligence, launched an enquiry, recorded the statement of Dr. Pillai, her husband searched certain alleged premises of Alex the investigations made by them revealed that the said vehicle had been imported into Dubai on 29-9-98 by air vide Gulf Air Flight DF 0508 from London and was cleared vide Customs Bill (for re-export) No. 11-1-2-04098504 dated 30-9-98. As this made it evident that the registration certificate filed by the importer i.e. Dr. Pillai was false and that the said vehicle was not in her possession for the required period of one year, prior to importation thereof, a CMP (No. 18107 of 1999) was filed by the Directorate of Revenue Intelligence before the Hon'ble High Court of Kerala seeking that the importer should be directed to produce the vehicle for seizure. In these proceedings, she, filed a counter-affidavit stating that the vehicle was sent to London on 6-6-98 for repair and that the document submitted by the Directorate of Revenue Intelligence, was the one which covered the re-entry of the vehicle into Dubai a....
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....that as the said vehicle was damaged during transportation, the said consignee had not paid an amount of 3485 Pound Sterling and had also claimed compensation. It also came to light that the said Alex had asked M/s. V P Cars, London to collect original Registration Certificate vide his fax message dated 30-9-98. Stating these facts an affidavit was filed before the Hon'ble High Court of Kerala. Ernakulam seeking that the importer may be directed to produce the said vehicle and that the Directorate of Revenue Intelligence, be permitted to seize the same. (e) Dr. Pillai as the importer vide her letter dated 23-6-2000 enclosed the vehicle clearance certificate 28521 for import of the said vehicle vide B/E No. MO/R/1997/19077, dated 5-3-97, Bill of Lading No. DXB/LON/785, dated 27-6-98 of M/s. Golden Line Dubai, UAE for shipping the said vehicle vide container No CAXU 2285610 in vessel KAMAKARA 56EE24 from Dubai to Southampton and a certificate from VP Cars. (f) Since cars and other vehicles for the transport of passengers fall under the category of restricted items and are permitted to be imported only under....
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....tion of the provisions of ITC PN 03/97-02, dated 31-3-97 and without a valid licence, was liable to confiscation to Government under Section 111(d) and (m) of the Customs Act, 1962. (III) Shri Alex C Joseph who was engaged in the business of sending cars of foreign origin into India in the name of passengers coming from abroad and who has been involved in may cases registered under the Customs Act, 1962 involving import of cars in the name of non-resident Indians had emerged as the main person behind the illegal import of the said vehicle; that he had induced Dr. Asha Sivasankara Pillai on promise of monetary consideration to give a copy of her passport for the purpose of allowing him to import the vehicle in her name; that Alex C Joseph asking M/s. V P Cars, London to collect the original Registration Certificate of the vehicle vide his fax message dated 30-9-98, his non-response to the summons and the recovery and seizure of the copy of passport of Dr. Asha Sivasankara Pillai from the residence of Alex were pointers to the role of Alex in the import of the vehicle; that Shri Alex C Joseph has imported the vehicle under seizure into India, which has been rende....
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....agency, but in the residence of the importer in the presence of her family. Being in one's own residence and in the midst of one's own family would definitely be an advantage and taking a statement forcibly from a person under such a circumstance is not easily possible. Hence the claim made by the importer that the said statement was taken under threat, duress and coercion does not appear to be genuine. Moreover, it is seen that the statement has been retracted only on 2-2-99, after a period of 18 days. Had the statement indeed be taken under duress, in the normal course the importer would have retracted the statement in the very next opportunity available. No justifiable reason has been given by the importer as to why the retraction was made after a period of 18 days. Hence it is clear that the retraction is only an after thought and cannot be accepted. 28. It is also seen that, Shri Gopalapillai Narendranath, husband of Smt. Asha Sivasankara Pillai, had given a statement under Section 108 of the Customs Act, 1962 before the DRI officials on the same day. In his statement he has admitted that the car imported in his wife's name did not belong....
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....artment of Customs, Sharjah pertaining to the subject car. However, it is pertinent to note that, the importer did not bring out these facts before the investigating agency while giving her statement under Section 108 of the Customs Act, 1962. If what has been stated by her subsequently were true, she would have at least mentioned these facts while giving her statement. Also, as the statement given by the importer has been established to be true and correct, the genuineness of these documents are clearly in doubt and the same cannot be accepted. Moreover the statement of Smt. Asha Sivasankara Pillai is in her own handwriting. 30. During the search conducted by the DRI officials at the residence located at Building No. IV/181 of Thiruvalla Municipality, a photocopy of the passport belonging to the importer was recovered among other items. Shri Alex has stated that the said premise belongs to his sister and he had shifted his telephone from his office to her house. Thus it is clear that the photocopy of the passport belonging to the importer that was recovered from the residence had been kept there by Shri Alex only. This corroborates the sta....
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....harjah in her name to India and that Shri Alex had been contacting her husband thereafter. In his statement dated 14-1-99, Shri Gopalapillai Narendranath, husband of the importer has stated that the car imported in his wife's name was not owned by her and that the same had been sent by Shri Alex in his wife's name for availing T.R. facilities. 34. During a search conducted at the premises located at IV/181 of Thiruvalla Municipality, photocopies of the passports of the importer and of another person by name Mohammed Haneefa Shanavas were recovered. Shri Alex C Joseph has stated in his reply to the show cause notice that the building belonged to his sister and not to him. However he has further stated that on closing down his office he had shifted his telephone to his sister's house, as he did not have a house or an office there. From his own submission it is evident that when he has shifted his telephone to his sister's house, on closing down his office, he naturally would have transferred any documents/materials that were in his erstwhile office to his sister's house. Thus it is evident that the copies of passports recovered from the residenc....
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....d taking a statement forcibly from a person in such circumstances is not easily possible'. And thereafter rejected the retraction made after a period of 18 days. He has gone by the statements of the husband of Dr. Pillai and concluded that since the same corroborates, is not retracted, hence statement of Dr. Pillai recorded on 14-1-99 should be the true contention. From the statements of Husband and of Dr. Pillai, it is observed that they have named one Shri Mohan who was the alleged link between Alex and Dr. Pillai. No statement of this Mohan has been brought on record. He is not even been identified. Therefore the statement of Dr. Pillai dated 14-1-99 which has since been retracted is not found to be creating confidence in the mind of the adjudicator that the statement reveals the entire truth stands glaringly uncorroborated. A perusal of the statements, indicates, if at all it implicates, Shri Alex in any manner, is that Dr. Pillai and her husband took the assistance of Shri Alex for clearance of the subject car, which in itself cannot be considered to be a reason to invoke liability for confiscation of the car under Sections 111(d) and 111(m) as arrived at for the visit of a pe....
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....efore confiscation under Section 111(m) as arrived at cannot be upheld. (c) The confiscation has been arrived at only on the ground as arrived at in paras 30 & 31 of the impugned order extracted herein above merely because photocopies of passport of Dr. Pillai has been recovered from the residence of the Sister of Shri Alex. From that, it cannot be concluded that the car imported by Dr. Pillai does not belong to her. As regards the finding that she had imported the car on the advice of Shri Alex, for a consideration, we cannot find that to be reason, even if it is taken to be on, it's face value, to cause confiscation of the car. Advising people who are eligible for a particular import cannot be held to create a liability for confiscation and or penalty under Customs Act. As regards Dr. Pillai's contention that the Photocopy of her passport which was recovered from Shri Alex's Sister's residence was planted there by DRI Officers, from the Mahazar dated 17-9-99 Drawn at the alleged residence of the sister of Shri Alex it appears that the Mahazar started on 16-9-99 at about 4.00 PM when the Senior Intelligence Officer, DRI, Cochin and party went....