ORDER
Gowri Shankar, Member (Technical)
1. These four appeals are against the common order of the Commissioner of Customs (Preventive). By that order, the Commissioner has ordered confiscation of the Toyota Ceres car imported in the name of Anand Giri without an option to redeem it on payment of fine, ordered confiscation of the Toyota Corsa car imported in the name of Vinod Chandra and permitted it to be redeemed on payment of fine of Rs 40,000/-. He has also imposed penalties of Rs 2.50 lakhs each on Anoop Gandhi and Ashwini Kumar Tandon, and Rs 5000/- on Vinod Chandra and Anand Giri under Section 112 of the Act.
2. The sequence of events, and what the Commissioner says are the facts leading to the order, can be summarised as follows. By the public notice no. 3 dated 31.3.1997 of the government permitted import of passenger cars, and other vehicles inter alia by Indian nationals coming to India for permanent settlement. Among the conditions to be complied with for making such import are that the importer has lived abroad continuously for at least two years prior to coming to India for permanent settlement; the payment for the car is to be made aborad before his return to India; and the duty on the car is to be paid in foreign exchange. These are conditions contained in clauses (b), (c) and (d) of the Annexure to the public notice. The Commissioner, in his order, finds that this facility was being misutilised. Ashwini Kumar Tandon, his brother Satish Tandon, and Anoop Gandhi,, formed a company, ESS International in April, 1997 in order to arrange import of cars in the name of Indian passengers belonging to the eligible category which we have referred to above. D.K. Jain, living in Delhi also was part of the arrangement. They made use of Kuldeep Singh to locate and contact passengers who would agree for the cars to be imported in their names. If they were agreeable they would sign in blank documents which were required for the import and clearance of the car. Gandhi and Ashwini Kumar Tandon placed orders for import of vehicles on a company Inpub in Japan belonging to Satish Tandon, specifying the name of the passengers in whose name the invoice for the car was to be issued. The payment for the car was made by D.K. Jain. The foreign exchange required fro payment of Customs duty was arranged to be transferred to the account of the passengers by Satish Tandon. On its import, the car would be sold, and the price paid for the purchase sent by illegal channels to Inpub. Vinod Chandra and Anand Giri were two such eligible person, who agreed to have the import of the cars in their names. On this basis, the Commissioner has concluded that the import was made not by Vinod Chandra and Anand Giri but by this group of Tandon and Gandhi. In coming to his conclusion, the commissioner has exclusively relied upon statements of the alleged parties to the transactions, the Customs House Agent etc.
3. The contentions raised on behalf of Tandon are as follows. The importer of he cars were actually the persons who claimed to be the importers. The public notice in question does not require that in order to avail of its benefit, the import must be made by the owner of the vehicle. Interpreting a similar provision for import of gold and silver contained in public notice 107 dated 1.3.1993, the Bombay High Court, in its judgement in Abdulla Kalingal Andu Vs Union of India 1994 (71) ELT 349, affirmed that the ownership is not the criterion laid down. No specific evidence is cited against the appellant. Anoop Gandhi, Anand Giri and Anilkumar and Jogesh, whose statements have been relied upon by the Commissioner, had retracted their statements. These statements therefore cannot be relied upon. While Commissioner has relied upon the statement of Anoop Gandhi to impose a penalty upon the appellants, he has, relying upon the same statement of Gandhi, exonerated D.K. Jain. These arguments were also raised on behalf of Anoop Gandhi. It is additionally contended for Anoop Gandhi that he retracted his statement in which he has incriminated himself the day after making it, when he was remanded by the magistrate after his arrest. There is therefore no evidence against him. while Anand Giri has initially stated that he was not the real importer of the car but lent his name, he retracted his statement 15 days after, as having been obtained under coercion and pressure. The conclusion of the Commissioner that Rs 70,000/- was remitted by Satish Tandon to the appellant because Anirudh Sharma whom the appellant has said lending money had claimed that he has only Rs 35,000/- in his Non Resident External account. Anirudh Sharma has not denied lending money to the appellant.
4. In its judgement in Abdulla Kalingal Andu Vs Union of India a single judge of the Bombay High Court had, in view of the statement of the counsel for the Union of India (and other respondents) that the ownership of gold and silver was not the criterion for its eligibility for import by a passenger under the Gold Import Scheme, quashed the prosecution instituted against the petitioner before it, evidently for importing the gold. In that scheme promulgated in public notice 107/92-97 dated 1.3.1993 of the director General of Foreign Trade, there was no specific condition that the passenger who is importing the gold must be shown. The conditions for import of the gold were as follows:
(i) The importer is coming to India after a period of not less than six months of stay aborad.
(ii) The quantity of gold imported shall not exceed 5000 grams per passenger.
(iii) Import duty is to be paid in convertible foreign currency.
(iv) There will be no restriction on the sale of such gold.
5. The conditions with which we are concerned with are as follows:
(a) Import of one passenger car with engine size not exceeding four cylinders and 1600 cubic capacity, new or old, is permitted.
(b) If the car is larger than this, it can be imported, it should have been in the use of the importer for more than a year prior to his return to India.
(c) The importer has stayed abroad continuously for a period of at least two years before coming to India for permanent settlement.
(d) Payment of the car is to be made aborad prior to his return to India.
(e) The car should be imported into India within six months of the arrival of the importer for permanent settlement.
(f) If the importer transfers his residence out of India, he can import another car only after five years after he imports the first car.
6. In the light of the striking number of similarities between the two regulations and in the absence of specific conditions in both the public notices, one relating to gold and other relating to car, that the importer must be the owner, and in view of the lack of clarity in the public notice with which we are concerned with, we are of the view that the opinion of the licensing authority as to what exactly the purport of the regulations in this regard should be obtained and the matter decided thereafter. However, we would emphasise that the public notice is clear that the payment for the car abroad does not involve directly or indirectly any remittance of foreign exchange from India. The notice had alleged that the foreign exchange for purchase and import of the car and payment of duty was generated by remitting abroad through illegal channels the sale proceedings of the car. If this allegation were correct, the benefit of the notification would not be available. The Commissioner has not given any finding on this aspect.
7. In addition, the inconsistencies pointed out before us that, on the same set of statement of Anoop Gandhi, the Commissioner has penalised Tandon but exonerated D.K. Jain, and that while he has permitted redemption of the car imported by Vinod chandra on payment of duty, he has not given the facility to Anand Giri are also to be ordered. The Commissioner finds the importer of the cars to be the “syndicate” composed of Tandon, Gandhi etc. They were therefore the persons from whose possession the goods were seized. They were also, according to them, the owners. In that case, there was no question of permitting Vinod Chandra to redeem the car, he being neither the owner nor the person from whom the car was seized.
8. In view of these consideration, we are satisfied than the Commissioner’s order relating to the appellants before us is required to be set aside and the whole matter examined clearly. We allow the appeals and remand the matter for this purpose. While doing so, the Commissioner shall also give the appellants a reasonable opportunity of being heard and pass orders dealing with each of the point that we have dealt with.