TaxTMI 
TaxTMI 
TaxTMI 
2013 (4) TMI 711
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....les auctioned by finance companies. One of the vehicles so imported was a Toyota Landcruiser imported in the name of one Mr. Shaikh Safder of Bangalore and the said car was imported vide B/E No. 986965, dated 1-9-2008. The value declared in the bill of entry was US $ 64000 which was found to be too low. Statements recorded from Mr. Rehman Shaikh and Mr. Shaikh Safder revealed that the actual value paid for the car was USD 1,08,000 and the difference between the value declared and the actual value was remitted in cash at Dubai. The investigation also revealed that Mr. Shaikh Safder in whose name the car was imported was not the real owner of the car and he had merely lent his name for a monetary consideration and the imports were actually made by Mr. Rehman Shaikh. Contemporaneous imports indicated the value to be in the range of GB P 54000. The car which was lying in the docks was seized on 14-5-2009. A show cause notice dated 12-11-2009 was issued, inter alia, proposing to enhance the value of the car seized from the declared CIF price of US $ 64000 to US $ 108000 and proposing to confiscate the car under the provisions of Section 111(d) and 111(m) of the Customs Act, 1962 for con....
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.... E.L.T. 54. (d) As regards the penalty on Mr. Rehman Shaikh, it is contended that the allegation that he had imported the goods using the name of some other person is just on surmises or presumptions and he had not committed any act or omission in regard to importation of car and therefore, he is not liable to any penalty. It is also submitted that the importer is Mr. Shaikh Safdar and he is the owner as shown in the Bill of Lading and Invoice. (e) Imposition of penalty on the appellants are not warranted. Accordingly he pleads for setting aside the impugned order and allowing the appeals. 4. The ld. Dy. Commissioner (AR) appearing for the Revenue re-iterates the findings of the lower authorities. He submits that the importer in his statement recorded under Section 108 of the Customs Act had clearly admitted that he was not the actual importer and he had merely lent in his name and therefore, he was not entitled to any redemption. Accordingly he prays for upholding the impugned order. 5. We have considered the submissions made by both the sides very carefully. We have also perused the various statements recorded under Section....
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....r in Dubai. In his further statement dated 9-10-2009, Mr. Shaikh Safder has stated that he knew Mr. Rehman Shaikh of Mumbai who gave him a proposal to allow use of his name for import of a high end vehicle and Mr. Rehman Shaikh promised him a sum of Rs. 2 lakhs for lending his name, to which he agreed. Mr. Rehman Shaikh informed him that he would be importing a Toyota Land Cruiser in his name (Shaikh Safder's name) and he would have to make a payment of US D 64000 towards purchase price of the said vehicle through his bank account and the said amount was paid to him in cash in UAE Dirhams amounting to 231000 by one Mr. Ayub, a cousin of Mr. Rehman Shaikh. Mr. Rehamn Shaikh had also told him that though the value of the vehicle would be in the region of USD 1,08,000 to 1,10,000, they would be showing the value of US $ 64000 only in the import documents to save customs duty and other taxes. As per the instructions of Mr. Rehman Shaikh, he had sent his passport and Mr. Rehman Shaikh, after some time, informed him that the Toyota Land Cruiser imported in his name had arrived at Nhava Sheva and he (Rehman Shaikh) would give him a sum of Rs. 2 lakhs along with his passport after clearanc....
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....ssions on the part of the appellant coupled with the statements and other evidences on record certainly lend credence to the Revenue's case that Mr. Shaikh Safder was only a front for the illegal import of the car by Mr. Rehman Shaikh and we hold accordingly. 5.6 As regards the undervaluation of the car, the same is clearly established. The admission by both Mr. Rehman Shaikh and Mr. Shaikh Safder in their statements clearly show the value to be US $ 108000 and the invoice for US $ 64000 dated 31-7-2008 submitted to the Customs to be a fabricated one. It is also a settled position in law that admitted facts need not be proved as held by the Hon'ble High Court of Madras in the case of Govindasamy Raghupathy [1998 (98) E.L.T. 50 (Mad.)]. The contemporaneous import of identical car vide B/E 616434, dated 23-9-2008 and 707100, dated 5-12-2008 through Nhava Sheva Port show the value to be GBP 54000 which more or less matches with the value of US D 108000 adopted for valuation of the impugned car. Thus misdeclaration and liability to confiscation under Section 111(m) of the Customs Act, 1962 is clearly established. In the light of these evidences, the determination of value at US $....
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....tically abandoned the vehicle. It is the case of the Revenue that the de facto importer/owner is Mr. Rehman Shaikh and Mr. Shaikh Safder is the benami importer. If that is so, then the option to redeem the goods on payment of fine and penalty should have been given to Mr. Rehman Shaikh. In the order of the appellate authority there is a finding that the impugned goods are prohibited as defined in Section 2(33) of the Customs Act, 1962, in view of the fact no type approval certificate has been given in respect of the impugned vehicle as required under licensing Note 7 read with Note 2 appended to Chapter 87 of ITC (HS) Classification. However, there is no mention in the said order about the relaxation obtained by the appellant Mr. Shaikh Safdar from DGFT, New Delhi, vide letter dated 18-1-2010. In the absence of a clear finding on this matter, denial of option to redeem the goods on payment of fine is not correct in law. Even if the goods have been disposed of during the pendency of adjudication proceedings, the Revenue could not have appropriated the entire sale proceeds. This Tribunal in the case of Yakub Ibrahim Yusuf (supra) had held that in a case where goods have been sold wit....