TaxTMI 
TaxTMI 
TaxTMI 
2015 (4) TMI 1198
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.... appellant M/s Zubair Ahmed under Bill of Lading No.YOKNSA080000001 dated 01/08/2008 in violation of the import policy, the Customs Act, 1962, etc. On the basis of specific intelligence inter-alia to the effect that certain Mumbai-based operators were engaged in fraudulent import of high end cars/SUVs, by adopting Modus Operandi being:- (i). Mis-declaration of new car as old, so as to claim substantial depreciation and lower the assessable value (mainly for vehicles imported under Transfer of Residence facility) (ii). Mis-declaration of old car (duty @ 165%) as new car (duty @ 113%) to evade duty by, tampering of chasis number/ odometer of used vehicles (some of which were stolen abroad). (iii). Mis-declaration of the model of vehicle with a view to importing high end vehicles in the guise of low end vehicles. (iv) Suppression of assessable value of accessories installed in the vehicle which substantially enhance, the value vehicle. 3. One such operator against whom investigation was initiated was Shri Rehman Shaikh, residing at Flat No. 2, Mascot Apartments, Veronica Road, Bandra (West), Mumbai - 400 050 and having office at Room No.5, Zears Business Centre, 4th Floor, God Gi....
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.... Barot (based in Delhi), who have given a power of attorney to him to operate the business in the name of M/s A.B. Consultants at Mumbai. He was holding a Category 1 Customs pass, as employee of M/s A.B. Consultants and that he was undertaking clearance of imported cars for Shri Rehman Shaikh. They had charged Rs. 25,000/- for clearance of each vehicle and further the they had cleared about 32 vehicles for Shri Rehman Shaikh and they had never met or interacted with any of the persons, in view, in whose name the said card had between imported. 6. The statement of Shri Rehan was again recorded on 19/09/2008 (while he was in judicial custody) with the permission of the Hon'ble Magistrate. In the said statement, Shri Rehman Shaikh was asked to depose and clarify about the status of the vehicles, which had been reportedly imported by him in the name of third parties and which were pending clearance at Nhava Sheva port or were yet to arrive. In response, Shri Rehman Shaikh clarified that regarding for vehicles they are filed the bills of entry and thereafter further four vehicles in respect of which, though these vehicles had arrived at Nhava Sheva no bill of entry had been filed till ....
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....3 (Year 2003) 9. The impugned vehicle was lying unclaimed in container No.TTNU2592442 at GDL CFS at Nhava Sheva, was examined in detail 21/04/2009 in presence of two independent witnesses. The impugned vehicle valued at Rs. 6,82,560/- (USD 15,800 as per invoice No.UTCL/UN019 dated 24/07/2008 of M/s World Wide Showa Tsusho Co. Ltd. recovered from the office premises of Shri Rehman Shaikh), was seized in the reasonable belief that the same are liable to confiscation under the provisions of the Customs Act, 1962. Action for disposal of the impugned vehicle following the procedure laid down under the provisions of Section 110 (1A) (1B) and (1C) was initiated on 26/09/2009. Accordingly order for disposal of the impugned vehicle was issued to the Deputy Commissioner in-charge, Disposal Section, JNCH, Nhava Sheva. 10. Shri Zubair Ahmed was located at his residence on 16/10/2009 and was summoned to the DRI office on which date his statement under Section 108 of Customs Act, 1962 was recorded wherein he inter-alia stated that - he used to work as a driver for Shri Rehman Shaikh during the period February, 2008 to July, nos. Shri Rehman him a sum of Rs. 20,000/- for lending his name for im....
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....haikh was in the business of import and trading of vehicles. Shri Rehman Shaikh does not fall into the category of importers, who are exempted from obtaining Importer Exporter Code (IEC), as specified in Chapter 2 of the Hand Book of Procedurals of FTP. Thus, the import of the impugned vehicle by Shri Rehman Shaikh in the aforementioned manner appeared to Trade be in violation of the provisions of Section 7 of the Foreign Trade (Development & Regulation) Act, 1992 read Rules 2 (c) and 12 of the Foreign Trade (Regulations) Rules, 1993, further read with provisions of Para 2.12 of Foreign Trade policy and Para 2.8 of the Hand Book of Procedure. That corrupt and/or fraudulent practices were adopted for causing import and clearance of the impugned vehicle, in violation of provisions of Rule 11, 14(1) & 14(2) of the Foreign Trade (Regulations) Rules, 1993. 12. Shri Zubair Ahmed appears to have lent his name in furtherance of the dubious designs of Shri Rehman Shaikh which led to the fraudulent import of the impugned vehicle. Shri Zubair Ahmed in collusion with Shri Rehman Shaikh appears to have done acts or omitted to do acts or has abetted the doing or omission of such acts, which hav....
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....have failed to appreciate the documentary evidence submitted by the appellants while submitting reply to SCN sufficient document was submitted to prove that the vehicle is purchased by the appellant out of his own earned money .and the transaction was effected through proper banking channel. The courts below failed to appreciate that there is no reason to allege non-bona fides import. As per the provisions of Indian Bill of Lading Act, 1856, the person in whose name is reflected in Bill of Lading has to be considered as owner of the goods. The Bill of Lading an invoice clearly shows the importer's name and he is the owner of the vehicle. The importer did not produce any other evidence to prove the ownership of the goods imported. The courts below have failed to appreciate that there is no evidence regarding involvement of the appellant in vacuo smuggling or mis-declaration or any contravention of law. The order of absolute confiscation of the vehicle is without any authority of law. Even if it is found that the car is liable for confiscation, the car imported by the appellant is not prohibited goods causing for absolute confiscation. As per Section 125 of the Customs. Act, 1962....
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....t car are not prohibited items for import and permission had been obtained being requisite approval/ relaxation from DGFT for the import of Right Hand Drive vehicles. As it was held that Mr. Shaikh Safder was a benami on the actual importer was Shri Rehman Shaikh, this Tribunal held that where the goods were seized before clearance from the customs, the option to pay fine in lieu of confiscation should have been given to the person who in the view of the Revenue was the real owner/ importer. Since no such option has been given, the matter was remanded to the Original Adjudicating Authority to give a finding as to whether the goods are prohibited or not. After taking into account the type approval certificate issued by DGFT, New Delhi and if the goods are found not prohibited, 'to consider grant of option to redeem the goods on payment of fine and penalty to the owner/importer of the car. It was also observed that since the goods have already been sold, the sale proceeds will have to be refunded to the actual owner/importer after adjusting the redemption fine and penalty therefrom. Accordingly, the Id. counsel prays for a similar relief in the facts of the present case. 16. Hea....