TaxTMI 
TaxTMI 
2003 (9) TMI 581
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.... firm, certain documents were recovered which indicated that the Directors of the firm had unauthorisedly imported a car in the name of the respondent. The statement of the respondent who filed Bill of Entry on 31-5-2000 for clearance of the car, was recorded wherein he admitted that the car was neither purchased nor booked by him and that Shri Aditya Singh of M/s. Quality Apparel Exports Pvt. Ltd. had taken his passport and booked the car in his name and signed some papers for its clearance. He also admitted that the duty amount payable on the car was provided to him by Shri Aditya Singh who had also offered Rs. 25,000/- as consideration amount towards the import of car for him. The statement was subsequently retracted and the respondent stated that he was a man of means, having been employed in Dubai with J.W. Marriott Hotel from August, 1993 to December, 1999 drawing a basic salary package of AED 6250 per month and had also received a severance package of AED 16720 on completion of his contract with the Hotel in 1999 and that he has purchased the car from a used car dealer in Karama used car market in Dubai. The Department alleged that the car was unauthorisedly imported in cont....
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....Sd/- (Jyoti Balasundaram) Member (Judicial) Dated : 20-6-2003 4. [Contra per : C. Satapathy, Member (T)]. - I have carefully considered the order recorded by my learned Sister. In this case, the appeal and the stay application have been filed by the very same Commissioner, who had himself earlier passed the impugned order, in pursuance of Board's Order in Review No. 14-R/2003, dated 22-1-2003 holding the impugned order to be not legal and proper. I have also carefully considered the reasons adduced in Paragraphs 7.1 to 7.15 of the said Order-in-Review which I reproduce below for better appreciation of the case :- "7.1 The Commissioner ought to have considered that Shri Gangaram Pandurang Kerkar in his statement dated 22-8-2000, inter alia deposed that he neither purchased nor booked the Car Toyota Land Cruiser and he had nothing to do with the said car and that Shri Aditya Singh had taken his passport and booked the said car and an accompanied baggage in his name (Shri Gangaram Pandurang Kerkar). The Commissioner ought to have considered that as deposed by Shri Gangaram Pandurang Kerkar, Shri Aditya Singh was taken to M/s. Saidutt Clearing Agency and Shri G....
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.....3 The Commissioner ought to have considered that Shri Aditya Singh had submitted papers and declaration dated 3-9-2002 confirming the fact that the loan to Shri Gangaram Pandurang Kerkar was paid out of their Export Inward Foreign Currency remittances and he also produced the copies of the bank proof, wherein an amount US $ 2,18,787/- was sent by M/s. Nirvana Trading Company LLC, Dubai as export proceeds. Shri Shoaib Mohd. Ali Sequeira alias Richie deposed his statement under Section 108 of the Customs Act, 1962 in the office of the Consulate General India, Dubai, U.A.E., wherein he inter alia deposed that he has remitted approximately US $ 35,000 to M/s. Quality Apparels Exporters Pvt. Ltd. and this was the only amount remitted by him and this amount was not against any particular invoice or consignment. The Commissioner ought to have taken into consideration that the documents pertaining to the car were taken over from the office premises from M/s. Quality Apparels Exporters Pvt. Ltd. The Commissioner ought to have considered that in the NRI account of Shri Gangaram Pandurang Kerkar there were hardly any amount remitted in his NRE account. The Commissioner ought to have als....
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....wn to Shri Aditya Singh, by reasons of the circumstances disclosed in investigations. 7.6 The Commissioner failed to appreciate the strange relationship between Shri Kerkar and Shri Aditya Singh wherein an employee drawing a salary of Rs. 3,500/- was importing and maintaining a vehicle worth more than Rs. 25 lakhs. It is also inconceivable that any employer would give such huge loans to an employee, who is working only for the previous four months. These facts clearly show that Shri Kerkar was used as a pawn by Shri Aditya Singh to import the vehicle and the Commissioner failed to see through lack of explanations from the importer and Shri Singh at the time of adjudication, in this regard. 7.7 The Commissioner failed to appreciate the fact, that a person, working in a seven star hotel for six years drawing salary of AED 6,250/- per month (about Rs. 75,000/-) in Dubai, was now working for a meagre salary of Rs. 3,500/- with Shri Aditya Singh. The Commissioner failed to appreciate the fact that Shri Kerkar failed to produce any documentary evidence to substantiate his claim of drawing a salary of AED 6,250 per month for six year or the severance package of AED 16,720/....
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....rt condition of no sale that the importer has been used by Shri Aditya Singh for effecting the import. The Commissioner had failed to observe that the importer had not produced any tangible evidences for purchase of the vehicle such as the purchase invoice and the means of payment of the same. 7.12 The Adjudicating Authority while commenting on the statement of Shri Jayraj Anandan, failed to take note of the fact that Shri Jayraj Anandan is the maternal uncle of Shri Randhir Singh who is a Director of the exporting firm M/s. Quality Apparel Exporters Pvt. Ltd., of which Shri Aditya Singh is another Director. Thus Shri Jayraj Anandan would attempt to safeguard the interest of Shri Aditya Singh, howsoever clumsy his statement may seem that his power of identification of a person depends on the place of meeting. The identity of Shri Ari is irrelevant to the case, which deals with the import policy violation and not the Foreign Exchange management. 7.13 The Adjudicating Authority failed to appreciate the fact that blank sale deed and mortgage deeds were found in the possession of Shri Aditya Singh, which clearly indicates the link of Shri Aditya Singh in the import. The....
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....;The impugned Public Notice No. 3 (RE-2000)/1997-2002, dt. 31-3-2000 issued by the DGFT allows import of passenger cars without a licence by individuals coming to India for permanent settlement after two years continuous stay abroad. It does not directly stipulate ownership of the car by such individuals but it contains a no sale condition for two years which implies that such individuals should be the owners of the cars imported by them. In view of such specific condition in the scheme for import of cars. I am of the opinion that the cited decision of Hon'ble High Court of Bombay rendered in the context of another scheme for import of gold and silver cannot be applied in this case. 7. I am, therefore, of the prima facie view that though Shri G.P. Kerkar has held himself out to be the importer, he cannot be allowed to import the impugned car not having satisfied the ownership condition which is implied in the impugned Public Notice. As a result, I am of the opinion that the impugned order requires to be stayed to prevent release of the car to an ineligible person. 8. However, since my opinion is different from that of my learned Sister, the matter may be referred to....
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....3. Shri. S.N. Kantawala, ld. Advocate appeared on behalf of the respondent. He reiterated the Order passed by the Commissioner. He also drew my attention to Para 3 of the Member (Judicial)'s Order, which is reproduced as under :- "3. We have heard both sides. The Commissioner has considered all aspects including the fact that loan was given by Shri Aditya Singh to respondent only for paying the duty on the car after mortgaging the car for collateral security and that the Public Notice in question does not stipulate any condition for possession of car prior to its importation into India and the recovery of blank invoice of M/s. Dollar Auto Sharjah (car dealers) from M/s. Quality Apparels Pvt. Ltd. does not establish that the respondent was only a name lender for Shri Aditya Singh in view of the fact that the respondent did not claim that he had purchased the car from M/s. Dollar Auto but from a used car dealer in Karama used car market in Dubai. The respondent also undertakes not to dispose of the car pending the appeal, and further undertakes to produce it for inspection by Customs, if called upon to do so. In the light of the above, the plea of the Revenue that the ca....
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....t only specifically designed vehicles suitable for use by handicapped. All such imports shall carry a "NO SALE" condition of two years which shall be endorsed by the Customs authorities on the passport/registration documents at the time of import and by the Regional Transport Authorities when such vehicles are presented for registration in India. All such imports, except by the physically handicapped persons, shall not involve any foreign exchange remittance from India directly or indirectly. The DGFT may, however, permit relaxation of these conditions or imports by any other category not listed in the Public notice in special circumstances. 4. All bonds/bank guarantees executed by importers of cars/two wheelers etc. prior to 31-3-97, where the vehicle has not been transferred, shall be deemed to have been discharged with the issue of this Public Notice. This issues in public interest." He also drew my attention to paras 30 and 31 of the Order-in-Original, which are reproduced as under for the sake of reference :- "30. However, in the Show Cause Notice, the name of the person who has issued the cheque has not been mentioned. Further, even the name of the benefici....
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....ative documentary evidence. Therefore, the statement of Shri Sanjay Somaiya, Manager of M/s. Dollar Auto regarding not having sold the said car to importer Shri Gangaram P Kerkar does not substantiate any findings of alleged violation of hawala transaction as stated in the investigation. The investigation agency should have identified the overseas seller of the said car and any tangible evidence regarding alleged hawala transaction could have been established by showing that the money for purchase of the said car originated from India or the money utilized for the purchase of the said car had been compensated by any other mode like adjustment in export proceeds or such similar manners. Thus from the perusal of facts available on records and findings of investigation as mentioned in Show Cause Notice, it is not proved beyond reasonable doubt that foreign exchange remittance has taken place from India directly or indirectly for purchase of the said car and thus any violation on this account does not appear to have taken place. Here, it is noticed that based on suspicion investigation can be initiated but based on suspicion nobody can be held guilty of committing any offence. Suspicio....