ORDER
A.C.C. Unni, Member (J)
1. These are four appeals arising from the same set of facts. They were heard together and are being disposed of by this order. Shri J.M. Sharma, ld. Consultant appeared for the appellants and Shri Panchatcharam, ld. JDR appeared for the respondent Collector.
2. We deal with the different appeals as under :-
I. Appeal No. C/930/93-B2 filed by Shri Harinder Singh, against Order-in-Original No. 28/Cus./93, dated 17-6-1993. The impugned order directed absolute Confiscation of Toyota Crown Car owned by Shri Harinder Singh, apart from imposing a penalty of Rs. 3 lakhs on him. The issue relates to the benefits claimed by the appellant for import of the said Car under Notification No. 258/90.
3. Brief facts are – Shri Harinder Singh, holder of Indian Passport No. E-134764 had entered the Indo-Pakistan Land Customs Border at Attari Road, Amritsar in a Toyota Crown Car (chassis No. 133-003851-Registration No. 15405 – Year and Model No. 1988). He filed Bill of Entry No. 135/91, dated 9-2-1991 seeking clearance of the vehicle without payment of Customs duty in terms of Notification No. 258/90-Cus., dated 23-10-1990 under which Motor Cars when imported into India by Indian Repatriates from Iraq or Kuwait through the Land Customs Station at Attari, Amritsar were exempt from the whole of the duty of Customs liable thereon subject to the conditions contained in the notification. The Customs authorities detained the said vehicle on the basis of prior intelligence report that a group of persons was importing cars on forged documents. On examination of the Registration Book and other documents it was revealed that the said car was registered in the name of Shri Ajaib Singh and not in the name of Shri Harinder Singh and the Regn. No. 3842 registered in Kuwait was in the name of Shri Ajaib Singh. Accordingly, Show Cause Notice dated 24-6-1991 was issued alleging that the impugned vehicle had been imported in contravention of the provisions of the Imports (Control) Order No. 17/55 as amended read with Section 11 of the Customs Act and therefore the said vehicle was liable to confiscation under Section 111 of the Customs Act. The noticee was further asked as to show why the benefit claimed by him under Notification 258/90 should not be denied and why penalty should not be imposed under Section 112. The allegations were denied by the noticee and in defence it was contended that the registration in respect of the impugned vehicle had been issued by the Government of Iraq in the name of Shri Harinder Singh and the same had been confirmed by the Embassy of Iraq and also authenticated by the Ministry of External Affairs; Government of India; that after invasion of Kuwait by Iraq, the Iraqi authorities had directed that all vehicles should be got registered afresh and accordingly the Registration Book was issued after verification of all the particulars and after the vehicle was made available for inspection by the Registering Authorities. The name of Shri Ajaib Singh got incorporated in the Registration Book due to a mistake since Shri Ajaib Singh had written a letter to the Indian Embassy Baghdad (Iraq) and the said Embassy had cleared the documents in a routine manner because of the large rush of documents required to be processed by the Embassy relating to all the repatriates at that time. Further, Shri Ajaib Singh had himself admitted that the said letter was issued by him under mistake. Shri Harinder Singh contended that he had purchased the said car from M/s. Mohd. Nasder & Sons of Kuwait and subsequently because of the invasion of Kuwait by Iraq, he had to leave Kuwait in great hurry and because of that he was not in a position to produce the title documents for consideration of the Customs Authorities. It was also contended that he was not aware of the requirements of Notification No. 258/90 and that he had acted in good faith and had not committed any violation of the Import (Control) Order or any other law. The Collector, after considering the reply and the submissions made before him during the adjudication, found that Paragraph 135 in Chapter IX of Import and Export Policy applicable for the period April, 1990 to March, 1993 provided that Indian Nationals returning to India for permanent settlement could import cars on the condition that he had stayed abroad continuously at least for a period of two years and the vehicle had been in his use for at least one year prior to his return to India. Collector found that the appellant Shri Harinder Singh had not produced Customs Clearance Permit issued by the Import Trade Control Authorities nor he had shown any evidence that he had applied for grant of such customs clearance permit. Collector therefore found that the import of the said car was unauthorised and the allegation of contravention of the Imports (Control) Order read with prohibitions imposed under Section 11 of the Customs Act stood established against the appellant Shri Harinder Singh. Collector also held that the vehicle had become liable for confiscation under Section 111(d) of the Customs Act. As regards the claim of appellant that he had fulfilled the conditions of exemption Notification No. 258/90, Collector observed that though in the Registration Book the number of the vehicle was shown as 3842 and issued in the name of Shri Harinder Singh, Bill of Entry No. 135/91, dated 9-2-1991 showed its registration No. as 15405 of Iraq. Besides, the letter dated 8-1-1991 issued by the Indian Embassy in Baghdad (Iraq) showed that the car bearing Regn. No. 3842 of Kuwait (impugned car) belonged to Shri Ajaib Singh and not Shri Harinder Singh. Collector also referred to expert’s opinion obtained by the Department as regards the year of manufacture of the vehicle under dispute. The said expert had opined that the year of manufacture of the vehicle was April, 1990 and not 1988 as claimed by Shri Harinder Singh and therefore the Registration Book produced by him could not have been genuine. Collector therefore held that appellant has not been able to establish that the impugned Motor Car stood registered in the name of Shri Harinder Singh in Kuwait/Iraq before 31-7-1990 and therefore he was not entitled to the exemption under Notification No. 258/90. Collector also held that the exemption has to be denied on another ground, viz., that the Wife of Shri Harinder Singh, Smt. Ravinder Kohli had also imported another car. As the Notification No. 258/90 allowed duty free import only for one car per family, the claim for duty exemption for import of the impugned Toyota Crown Car was denied to appellant Shri Harinder Singh. As regards imposition of penalty, Collector found that since appellant had committed violation of the Import (Control) Order read with Section 11 of the Customs Act, the car had become liable to confiscation and such omission rendered the goods liable to confiscation as well as to penalty under Section 112 of the Customs Act. Since the exemption notification allowed duty free import of only one Motor Vehicle for a family, and the appellant had admitted to the import of more than one car and but for the vigilance exercised by the Customs Officers, he would have been able to import more than one car. Mens rea had therefore been established attracting penal action, held the Collector.
4. It was contended before us that the findings of the Collector were erroneous and not sustainable inasmuch as the Department had not discharged the burden of proof that the Registration papers produced by the appellant were false and not genuine. Ld. Consultant submitted that the circumstances relating to the import of the impugned vehicle and the difficulties faced by Indian repatriates fleeing from Kuwait after the Iraqi invasion of Kuwait during 1990 had to be borne in mind for fully appreciating the case of the appellant Shri Harinder Singh and the two other appellants. In this connection, he referred to the observations in the Tribunal’s Final Order Nos. C-773-777/96-B, in which the back ground for issue of Notification No. 258/90, dated 23-10-1990 had been referred to. On more or less similar facts, the Tribunal by majority had set aside the absolute confiscation of the vehicles. The penalties imposed on the importers were also waived and the importers were allowed to clear the cars on payment of redemption fines. As regards the allegation that the impugned Toyota Crown Car was not in the name of appellant Shri Harinder Singh, but in the name of Shri Ajaib Singh, ld. Consultant submitted that initially the vehicle was registered with the Government of Kuwait with Regn. No. 3842 on 21-5-1988. He pointed out that the date of registration mentioned in the Show Cause Notice viz., 31-5-1988 was not correct. As per the practice followed by the Kuwait Authorities no registration of vehicle was possible unless the vehicle itself was presented before the Registering Authorities. After the invasion of Kuwait by Iraq, the Iraqi Authorities had directed that all the vehicles should be got registered again and the appellant had to obtain fresh registration from the Iraqi authorities in Kuwait and a fresh Registration Book was issued by the Iraqi Authorities in Kuwait on 2-1-1991. The said Registration Book was issued only after all the particulars had been tallied and after the vehicle had been made physically available to the Registering Authorities. The Department had, on the other hand, on the basis of letter dated 8-1-1991 issued by the Indian Embassy, Baghdad showing Shri Ajaib Singh as the owner of Toyota Crown Car with Regn. No. 3842 of Kuwait concluded that the impugned car was owned by Shri Ajaib Singh and not by appellant Shri Harinder Singh. Ld. Consultant submitted that Shri Ajaib Singh was also a member of the group of repatriates travelling along with Shri Harinder Singh. The repatriates were under great pressure and tension and they were anxious to obtain early clearance from the Indian Embassy, Baghdad. For expeditious clearance Blank Proforma made available by the Indian Embassy in Baghdad on the letter head of the Indian Embassy were distributed to the repatriates who were asked to fill the same. These proforma applications were packed in bundles at the overworked Indian Embassy. It was impossible for the Embassy authorities to look into the details or to verify the signatures in each and every case as there were long queues of Indian repatriates wishing to travel to India. It was in that situation that Shri Ajaib Singh had hurriedly put the number of car with Regn. No. 3842 in the Application Form. It was relevant to note that Shri Ajaib Singh himself was the owner of another vehicle viz., having Regn. No. 6747 (Mercedes Benz -1984 Model). The signature put by the Indian Embassy officials on such letters which were done under great hurry and pressure of work could not be made the sole ground for alleging that vehicle bearing No. 3842 belonged to Shri Ajaib Singh and not to Shri Harinder Singh. Ld. Consultant also referred in this connection to the statement given by Shri Ajaib Singh in which he admitted that he had filed the letter under a mistake and he had further categorically stated in his letter dated 8-1-1991 that the letter was issued by him under a wrong impression. Ld. Consultant submitted that the totality of the situation should be taken into account and the mere fact that the letter from the Embassy showed that the impugned vehicle stood registered in the name of Shri Ajaib Singh on the basis of a letter issued by Shri Ajaib Singh should not be made the sole ground for alleging suppression of facts or mis-declaration, when Shri Ajaib Singh had admitted that the letter was written by him under a mistaken notion. Besides, the Department had placed reliance on an opinion given by a certain expert as to the year of manufacture of the vehicle. The said expert opinion had been taken behind the back of the appellant and the appellant was not provided any opportunity to rebut the said opinion. No reliance could therefore be placed on such expert opinion, contended ld. Consultant.
5. Ld. JDR, Shri Panchatcharam reiterating the findings of the Collector submitted that the appellant had not disputed the fact that he had not followed the procedure for import of cars by Indian Nationals returning to India for permanent settlement under para 135 of the Import and Export Policy -1990-1993. Contravention of the prohibitions of Imports (Control) Order read with Section 11 of the Customs Act was therefore clearly established. The claim of the appellant that the Indian Embassy letter showing Shri Ajaib Singh as the owner of Toyota Crown Car with Regn. No. 3842 should not be relied upon on the plea that there was pressure of work in the Embassy at that time or that Shri Ajaib Singh had written the letter under mistaken impression cannot be accepted as the said document was a document issued by a responsible official of the Embassy. He also referred to the conditions of exemption Notification No. 258/90 para (iv) which stipulated that the importer seeking exemption should file a declaration that no other Motor Car had been imported by him or any member of his family in terms of the notification. Ld. JDR in this connection pointed out that another car was also being imported by the wife of Shri Harinder Singh simultaneously claiming the benefit of Notification No. 258/90. He stated that on inspection of the vehicle, it was found that the Engine No. of the vehicle shown in the Registration Certificate was different from the imported car. Therefore, it was quite evident that the document relating to the import of the vehicle was not a genuine one.
6. We have considered the submissions. We have taken note of the submissions made by the ld. Consultant about the difficulties that were being faced by the Indian repatriates during the Iraqi invasion of Kuwait during the period and the underlying humanitarian considerations for issuing the exemption Notification No. 258/90. However, it is also important to see that the concessions given under the notification are not taken advantage of by unscrupulous persons or that an unintended benefit is derived from the said notification. Condition (i) of the said notification was that the importer had to show to the satisfaction of the Customs Authorities that the Motor car was registered in the name of the Importer. The Department had alleged that the Registration of the Motor Car said to be imported was not in the name of Shri Harinder Singh but in the name of Shri Ajaib Singh. The Department had relied on the certificate given by the Indian Embassy in Baghdad showing Shri Ajaib Singh as the owner. The Registration Certificate shown by the importer (copy of which is available at page 5 of the list of documents filed by appellant Shri Harinder Singh) shows that vehicle No. 3842 stands in the name of Shri Harinder Singh. This document is inconsistent with the certificate issued by the Embassy of India (Baghdad) on 8-1-1991 stating that the car bearing No. 3842 belongs to Shri Ajaib Singh. In his statement dated 13-2-1991 given by Shri Harinder Singh (copy of English translation at page 10-11 of appeal No. C/93/B2), Shri Harinder Singh had stated that he had got the impugned Toyota Crown Car from a Pakistani citizen, Shri Abdul Rahman, in 1989 and it was registered in his (Harinder Singh’s) name in 1989. He had also stated that the original Registration No. in Kuwait was 15405 and the model was of 1988. The Collector in the impugned order had brushed aside the contention of the appellant that Shri Ajaib Singh had wrongly indicated in his letter to the Indian Embassy in Baghdad that the car belongs to him and that there was a mix up in the Regn. No. of the cars. We feel that the contention of the appellant that because of the abnormal situation prevailing in Kuwait and Baghdad at the material time and the difficulties experienced by the large number of repatriates and the Indian Embassy in Baghdad in processing the huge number of applications for permission to travel by land should have been taken note of by the Collector and should not have been brushed aside summarily. In the face of the Registration Book produced by appellant showing Shri Harinder Singh as the owner of Toyota Crown Car bearing Regn. No. 3842, the further certificate from the Indian Embassy in Baghdad showing Shri Ajaib Singh as the owner of the vehicle appears to have less credibility when it is realised that the time available for verification of details in the case of repatriates by the Embassy was very limited. That apart, due consideration has also to be given to the scheme of Notification No. 258/90 which was a humanitarian one. Further, we find that the ld. Consultant has made a valid point in contending that the expert opinion relied on by the Department to conclude that the model of the vehicle was 1990 and not 1988 as claimed by the appellant should not be relied upon since the said opinion had not been tested by cross-examination or corroborated by any other material. As regards the finding of the Collector that the appellant had not complied with the Paragraph 135 of Import and Export Policy for 1990-1993 and therefore has become liable for contravention of Sections 11, 111 and 112 of the Customs Act, we find that once it is established that the appellant falls in the category of persons entitled to the benefit of Notification No. 258/90, the restrictions imposed on the Paragraph 135 have to yield to the beneficial nature of Notification No. 258/90. Having regard to the totality of the circumstances and taking note of the decision of the Tribunal in Final Order Nos. C/773-777/96B, we hold that the order of the absolute confiscation of the vehicle cannot be sustained and the appellant has to be given an option for redeeming the impugned vehicle. In the circumstances of the case, we also set aside the penalty of Rs. 3 lakhs imposed on the appellant.
7. In the result Appeal Nos. C/930-933/93-B2 filed by Shri Harinder Singh is allowed to the extent of setting aside of the order of the absolute confiscation and the penalty amount. The vehicle shall, therefore, be allowed to be redeemed Original adjudicating authority is accordingly directed to allow release thereof on payment of appropriate amount of redemption fine taking into account all the relevant considerations for arriving at the amount of such fine. Appellant shall also be given an opportunity of being heard in the matter.
8. This Appeal of Shri Harinder Singh (C/930/93-B2) is in the result allowed by remand in the above terms.
9. II. Re : Appeal No. C/931/93-B2, filed by Shri Ajaib Singh Sethi against Order-in-Original No. 30-Cus/93, dated 18-6-1993.
10. By the impugned order Mercedes Benz Car (Regn. No. 15381 -Model 1983 – Chassis No. 12322312128881) was ordered to be confiscated absolutely and a penalty of Rs. 50,000/- imposed on appellant Shri Ajaib Singh Sethi, among others.
11. The appellant’s case is that he was not concerned in any manner with the said car and that the agreement dated 24-12-1990 between him and Shri Harinder Singh for purchase of the said car was an agreement signed during a drinking session and the said agreement has been cancelled on the very next morning. This fact according to appellant was corroborated both by S/Shri Harinder Singh and Ajaib Singh in their subsequent statements to the Customs Officers. It was submitted that the finding of the Collector that appellant Shri Ajaib Singh had connived with Smt. Ravinder Kohli and Shri Harinder Singh in the unauthorised import of the car was not based on any evidence. Further, ld. Consultant also submitted that though originally appellant Shri Ajaib Singh had agreed to the suggestion of Shri Harinder Singh and Smt. Ravinder Kohli to purchase the said car, when he came to know that only one car could be taken to India, the idea was dropped and the agreement dated 24-12-1990, was not implemented. In the peculiar circumstances under which the impugned car was brought to India and the difficulties experienced by the repatriates, ld. Consultant pleaded for a lenient view being taken and for reduction in the quantum of penalty, if the Tribunal is not in favour of granting the prayer for setting aside of the entire penalty of Rs. 50,000/- on appellant Shri Ajaib Singh.
12. Ld. SDR reiterated the findings of the Collector and submitted that there was clear evidence on record to show that the appellant Shri Ajaib Singh along with the other two appellants had tried to import the said car in contravention of the provisions of the Customs Act and the penalty imposed on him for such contravention was fully justified.
13. We have considered the submissions. As regards the contention that the agreement dated 24-12-1990 had been subsequently cancelled by the appellants, we are unable to accept the same since it clearly appears to be an after thought. Further, though appellant Shri Ajaib Singh has stated that he was not concerned in any manner with the Mercedes Benz Car such a disclaimer cannot absolve him of attempted import in view of the agreement dated 24-12-1990. However, taking into account the overall circumstances of the case, we reduce the penalty imposed on Shri Ajaib Singh Sethi from Rs. 50,000/- to Rs. 10,000/-.
14. III. Re : Appeal No. 933/93-B2 filed by Smt. Ravinder Kohli. Appellant Ravinder Kohli has filed this appeal against the Order-in-original passed by the Collector of Customs, Chandigarh on 18-6-1993 by which Mercedes Benz car was confiscated absolutely under Section 111(b) of the Customs Act and a penalty of Rs. 50,000/- was imposed on her on charges of contravention of prohibitions imposed under Customs Act and Import Control Order with deliberate intention to evade payment of duty. Appellant has claimed that the Mercedes Benz Car was validly imported by her and the benefit of Exemption Notification No. 258/90 should have been allowed to her. She had prayed for setting aside of the absolute confiscation of the car as well as the penalty imposed on her.
15. During the proceedings before us ld. Consultant Shri J.M. Sharma had conceded that the appellant Smt. Ravinder Kohli is not contesting the denial of the benefit of Exemption Notification No. 258/90 by the Collector since the said notification permitted only the import of one car duty free per family. However, it was prayed that the penalty of Rs. 2 lakhs imposed on Smt. Ravinder Kohli may be set aside and the order of absolute confiscation of the Mercedes Benz Car may be modified giving appellant Smt. Ravinder Kohli an option to redeem the car on payment of appropriate redemption fine.
16. Ld. SDR appearing for the Revenue drew our attention to the fact that there was no evidence on record to show that Appellant Smt. Ravinder Kohli was the owner of the said car. Even otherwise, the appellant Smt. Ravinder Kohli could not claim the benefit of Exemption Notification 258/90 since the said notification allowed duty free import of only one car, per family, and since Shri Harinder Singh, her husband had also imported a car and claimed exemption. The claim of the appellant Smt. Ravinder Kohli therefore for duty exemption for import could not be allowed. Further, since the appellant had filed a Bill of Entry and the contravention of the provisions of the Imports Control Order prohibiting import of cars without import licence or customs clearance permit had been clearly established, the penalty of Rs. 2 lakhs imposed on her and absolute confiscation of the vehicle as offending goods was fully justified, according to the ld. JDR.
17. After carefully considering the submissions and the facts and circumstances of the case, especially the submissions made by the ld. Consultant conceding that the appellant Smt. Ravinder Kohli could not seek the benefit of exemption notification, we are of the view that no case has been made out for setting aside of the penalty. However, we feel that the end of justice will be met in the present Appeal if quantum of penalty on Smt. Ravinder Kohli is reduced from Rs. 2 lakhs to Rs. 50,000/-. In the facts of the case, we also feel that the order of absolute confiscation of the Mercedes Benz Car is not justified and the option should be given to the appellant Smt. Ravinder Kohli to redeem the vehicle on payment of appropriate redemption fine. The authority concerned will no doubt take into account all the relevant factors under law while deciding the amount of redemption fine required to be paid by the appellant.
18. IV. Appeal No. C/932/92-B2 -Appeal filed by Shri Harinder Singh :
This appeal is also arising from the Order-in-Original of Collector of Customs, Chandigarh dated 18-6-1993 imposing penalty of Rs. 50,000/- on Shri Harinder Singh in relation to the import of the Mercedes Benz Car by appellant’s wife, Smt. Ravinder Kohli. The facts of the case have been referred to in the appeals filed by S/Shri Ajaib Singh and Smt. Ravinder Kohli above. The penalty on appellant Shri Harinder Singh has been imposed on the ground of connivance by appellant with Smt. Ravinder Kohli and Shri Ajaib Singh in the unauthorised import of the Mercedes Benz Car. Ld. Consultant had pleaded for a lenient view being taken as to the quantum of penalty if the Tribunal is not in favour of granting the prayer for setting aside the penalty altogether. The ld. SDR reiterated the grounds taken in the Show Cause Notice and the findings against the appellant in the impugned order.
19. After considering the submissions made and the evidence on record, we are of the view that no case has been made out for dropping of penalty. However, having regard to the overall facts of the case, we feel that ends of justice will be met in this case if the penalty imposed on appellant Shri Harinder Singh is reduced from Rs. 50,000/- to Rs. 10,000/-.
20. Subject to the above modification, we reject the appeal on other points urged before us.
All the four appeals are disposed of in the above terms.