ORDER
S.S. Sekhon, Member (Technical)
1. These appeals are being disposed of by this common order as the issues are the same.
2. The Special Investigation and Intelligence Branch (SIIB for short), New Customs House, Mumbai, on the basis of an information made enquiries into the unauthorized import of Mitsubishi vehicles, shipped from Dubai and sought to be cleared on TR basis, learnt that 10 vehicles belonging to a Company at Dubai, who were doing vehicle business by taking loan from Standard & Chartered Bank there, have been imported in the name of various persons who have neither the money nor in possession of the vehicles for one year. It was also found by SIIB that there was a dispute between the company and the bank regarding the repayment of the loans and the bank at Dubai had disposed of the said vehicles, by an auction on 26.01.1995. The Show Cause Notices issued, as seen in the case of Appellant in Appeal No. 968/R/97-MUM alleged:-
(i) The vehicle imported was auctioned by Standard & Chartered Bank on 21/01/95 and hence could not have been in the importer’s possession for more than one year as per Public Notice No. 202(PN) 199297 dated 30/03/94.
(ii) Addresses on the invoice-bill of lading and address on the passport of the importer are different.
(iii) The importer has misdeclared his address in India with intention to mislead the Customs Department after clearance of the car.
(iv) Close scrutiny of invoice no: 0001 dated 02/01/93 shows that it has marking at left bottom side to indicate “FPP/JAN94/50 BOOKS”, that would lead to the conclusion that the invoice was printed in January 1994. Therefore, it appears that the invoice has been backdated with intention to mislead the Customs Department to avail wrongful TR facility. The importer had no funds towards payment of duty in his NRE account.
(v) Date of arrival and date of shipment of are different.
(vi) The importer had no knowledge of the price of diesel and his average consumption and the car shows use of 3000 kms.
3. The original authority, after considering the submissions and the material on record, found:
(i) since the importers had produced car registration certificates, insurance, etc. and export permissions which were documents maintained by the Government Department in the UAE and the translations thereof obtained from the Indian Counsel in UAE revealed the registration of the cars in the name of the present importers, such documents cannot be ignored and have to be relied upon.
(ii) the unauthenticated letters/fax from Standard & Chartered Bank produced material sufficient to disregard the Government Document, and since no officer from the bank had filed an affidavit nor they turned up to confirm or deny the auction of the vehicles and to bring on record, as regards to whom these vehicles were auctioned and who were the earlier owners. He also observed that not only the Bank documents were unauthenticated but the fax dated 29th June 1995 indicated that there was a forgery attempted. He, therefore, did not place any reliance on the said Bank documents.
(iii) After observing that the ownership has been methodically claimed by the importer, he held the said vehicle were permissible for imports since the other material based in the Show Cause Notice as regards the address in India not being the same and the appellants not being in a position to pay the duties were not relevant factors.
4. The Revenue took the matter in appeal to the Commissioner who concluded that the Department has filed the appeal on assumptions and has sought to indict the lower authority’s findings but have not come up with substantiated documents to the contrary. Therefore, the Commissioner was not convinced to accept the argument that the credibility of the Standard & Chartered Bank was being questioned. It was also held that the investigations could have been done and documents produced and since no cogent reasons was given to prove the order of the lower authority to be infirm, the Revenue’s appeal was rejected, after accepting the lower authority’s order on the documents produced and their acceptability.
5. The Revenue has filed these appeals on the grounds:
(i) the Additional Commissioner has applied full rigors of Evidence Act to the case booked under Customs Act while as per the decision in the case of d. Bhoormall-1983/ELT/1546 SC, it was held that the principles underlying Section 106 of the Evidence Act, the burden would deemed to have been discharged, if sufficient evidence to raise the presumption was adduced.
(ii) The Commissioner (Appeals) was not correct in arriving at a decision that the Department had not presented any evidence or documents in the grounds of support were produced.
(iii) The original authority had erred in relying on the premise that documents authenticated by the Indian Counsel in the UAE and by the Government Department in the Ministry of Interior like Registration Book, Insurance, etc. were originals was not correct. It was submitted that the documents, the Indian Counsel has certified, were mere translations of private vehicle registration, car vehicle exportation certificates from Arabic to English and there was no allegation that these documents were false, but it was their submission that these documents were obtained on misrepresentation of facts.
(iv) The original authority has disregarded the evidence given in the letter by Standard & Chartered Bank, Dubai Branch, on the ground that the same was unauthenticated letter and no bank official who had issued the same turned up to confirm or deny the auction or as to whom the vehicles were auctioned and who were the real owners. Without appreciating the fact that the document was a fax sent by SIIB to Standard & Chartered Bank who had responded by fax dated 29.06.95, which was authenticated by their Bombay branch office and who had handed over the same to SIIB officers. These facts categorically indicate that the vehicle was sold to a third party on 29.01.95 and was the property of Standard & Chartered Bank till January 1995 when it was old. This Bank is a reputed bank and there was no reason to doubt the credibility of the document and there was no reason for them to give false evidence or statements contrary to facts as they have no interest in the parties. Therefore, by not placing reliance on this document has resulted in miscarriage of justice. This document evidences that the vehicles were originally belonging to one Mr. Alex Joseph and were taken over by the bank for financial implication (non-payment of loan) and the vehicle was in the possession of the bank till January 1995. Therefore, the importers’ contention that the vehicle was with them for a period of two years before their departure is false and the orders of the Commissioner (Appeals) are erroneous.
(v) Corroborative evidence like giving false address in the bill of lading, bill of entry and the invoice dated 02.01.93 by M/s. Al Habtoor Motors Company (LLC), Dubai, UAE could not have been issued on 02.01.93 as the bill book itself was printed in 1994 as is evidenced from the invoice itself which shows the marks “FPP/JAN94/50 BOOKS”. The financial incapacity of the purchaser and payment of duty in foreign currency should have been considered.
6. The matter was heard and the photocopies of the copies of documents, submitted by the Revenue, were perused and it is found:
(a) The fax dated 29th June 1995 addressed to AC, SIIB from Standard & Chartered Bank Group Manager reads as follows:
“We refer to your fax message of 28.6.95 with attachments concerning three specified vehicles and the date of auction.
We have reviewed the files of our Personal Banking Unit and have spoken to Mr. Shahli Akram. Attached for your information are copies of the 2 page fax sent to our former client Mr. Alex Joseph on 21 February 1995.
The office has sighted the original fax and is sure that what you have received is a deliberately altered copy and we would ask you to investigate this forgery. In the circumstances, we would ask that you refer all documents purportedly issued by Standard & Chartered Bank to this office for verification.
We are also not prepared to have Standard & Chartered’s documents and name brought into disrepute by any other party for their own gain. We repeat our statement of 21 June 1995 that the three vehicles referred to in your fax of 20.6.95 were not sold by SCB on the 26th January 1995. We are prepared to advise that the vehicles were sold to a third party on 21 January 1995.
We remain surprised that you have not gone through the usual channels of cross-jurisdictional enquiries and would urge you to do so if you require information from our records here.
Please be advised that all communications from this office will be routed via our Bombay office to prevent alteration and will be handed to you by a Bank representative.”
From the above, it appears that certain original fax messages received by the investigators in the New Customs House, Mumbai, were deliberately altered copy and that forgery was required to be investigated. No further material was shown to us that investigation was conducted in this regard. The fax further states that the three vehicles referred to were not sold on 26th January 1995 but were sold to a third party on 21.01.95. This fax does not indicate the identity of third party to whom the vehicle was sold nor does it indicate that the importers were not the persons from whose possession the bank had taken over the said vehicle for auctioning the same to recover certain amount from one Mr. Alex Joseph. The fax only indicates that the vehicles were taken charge on a certain unspecified day and were thereafter auctioned on a certain date. The fax does not indicate the date of taking over of the said vehicles, whereas the registration of documents of the vehicle and the export certificate of the car, permitting the export of the said vehicle from UAE to Bombay, which are records maintained by a Government Department, indicate the ownership and permissions to be in the name of the present importers throughout. A strong plea is being made that these documents had been obtained by misrepresentation. Considering the same, it is found from the photocopies of the documents submitted to the Bench, by Revenue, that there is a letter addressed by Directorate of Revenue Intelligence No. 50/c-13/iv-93 dated 29.2.96 wherein the enquiries conducted by the source of the Directorate reveal as follows:
“On this issue, enquiries were made with the following parties of Dubai through the source of this Directorate.
(i) Umm Al Quwain Police
(ii) General Manager (Mitsubishi), M/s. Al Habtoor Motors Co., (LLC) Dubai.
(iii) M/s. Standard & Chartered Bank, Dubai
(iv) Dubai Traffic Police
In response to our enquiry all of them have replied the details of which are furnished below:
(i) Umm Al Quwain Police – vide their letter dated 02.10.95 the traffic and licence section of Umm Al Quwain have informed that the said three vehicles were registered with them, the details of which are furnished, are correct, and the export certificates issued by them in this connection are genuine (Reply received in original is enclosed).
(ii) M/s. Al Habtoor Motors – vide their letter dated 20.9.95 (Shri Abit Shetty, Fleet Sales Manager) have informed that the three invoices are true and correct and that the “No. FPP/Jan.94/50 Books” is their internal confidential coding of invoices and has no connection whatsoever on being printed in January, 1994 (Reply in original is enclosed).
(iii) M/s. Standard & Chartered Bank Dubai: vide their letter dated 26.10.95, Shri M. Walker, Group Manager of M/s. Standard & Chartered Bank, Dubai has informed that Mr. Shahli Akram has denied having issued letter of 25.6.95, that they have no dealings with three Mitsubishi Pajeros bearing the letter ‘N’ in the vehicle identification numbers and if this is substituted with letter ‘R’ the vehicle numbers quoted are correct and these vehicles were not sold by them on 26.1.95, but had been their property prior to this date and had been sold at auction following lawful repossession.
In this connection intelligence gathered through overseas enquiry reveals that the letter dated 25.6.95 was indeed issued by the Standard & Chartered Bank, but due to some reason the person who issued the letter is denying the same. However, the letter dated 25.6.95, while confirming the auction of seven vehicles on 26.1.95 disowns three vehicles starting with Chassis No. CONV. Close scrutiny of the documents sent by Customs, Bombay reveals that the three Mitsubishi Pajeros involved bear Chassis nos. starting with CORV. It is learnt that CONV represent left hand drive and CORV represents right hand drive vehicles. Since the vehicles involved are right hand drives, the letter dated 26.1.95 has no evidentiary value. Further, a copy of press advertisement was earlier forwarded by M/s. Standard & Chartered Bank vide letter dated 8.5.95 confirming an auction of cars to take place in January, 1995 in which also three vehicles were not figuring. (Copy of the letter enclosed).
(iv) Dubai Traffic Police: vide their letter ref. 19/1/2077 dated 8.7.1995 have informed that the vehicle having Chasis No. CONV 440 PJ 00107 was registered with them from 5.9.92 to 30.8.93 and re-exported to India vide export certificate no. 8326277 dated 26.7.93. (Letter in original enclosed).
In this regard, intelligence gathered reveals that one Alex Chakkattu Joseph, holder of Indian Passport No. L-640058, issued at Dubai on 20.7.1992 obtained financial assistance from Standard & Chartered Bank for purchase of a number of cars (in paper only) and subsequently by manipulating documents and chasis number of vehicles defrauded the Bank. It appears that against him the bank has filed a criminal case and also informed about his activities to the Deputy Director of Enforcement Directorate, Bombay. It is suspected that his hand may be there in respect of the three vehicles”.
This letter, which is now placed on record by Revenue, indicates that the export certificate issues was genuine as per the report of the Police Department of UAE and not much significance could be given to the endorsements below the invoice to indicate that the invoices were by Al Habtoor were not issued on the date mentioned therein. This letter also indicates that the auction by Standard & Chartered Bank was made after repossession but does not indicate the date of the repossession or that in the auction, the present importers were not the persons who were sold these cars. No enquiries seem to have been made on these vital issues. Nor were the importers clarification sought on re-possession etc. On incomplete enquiries, the case being made out by the Department can not be supported.
(b) The set of documents submitted by revenue also enclosed. Public Notice No. 02(PN)92-97 dated 30.3.1994 issued by Government of India, Ministry of Finance, indicating the policy relating to Import of Cars. Para 2(A) thereof reads as under:
“Indian nationals or foreign nations of Indian origin coming to India for permanent settlement:
(a) Import of one passenger car with engine size not exceeding four cylinders and not exceeding 1600 c.c. is permitted, whether the car is new or old. Alternatively, import of one passenger car is also permitted provided the car has been in the use of the importer for more than a year prior to his return to India.
(b) The importer has stayed abroad continuously for a period of at least two years prior to his coming to India for permanent settlement.
(c) The payment for the car is made abroad before his return to India.
(d) The car should be imported into India within six months of the arrival of the importer in India for permanent settlement.
(e) If the importer transfers his residence out of India again, he will be entitled to import another car under this policy only after a minimum period of five years from the date of Importation of the previous vehicle.
(f) The importer is free to sell the car in the open market after his return to India without any restriction regards the period of retention of the vehicle.
(g) Import of any other type of automobile vehicle may be permitted by the Director General of Foreign Trade on merits.”
What is required as per the stipulations in this para 2(A)(a), of the Policy is that the car should be ‘in the use of the importer for more than a year’ and not ‘ownership’ as is being interpreted by the Revenue. Therefore, the bank documents certifying that the cars were in their ownership does not indicate that the same could not be in ‘use’ of the importer, when the Notice accepts 3000 km. to be shown as run on the Mile-o-meter. Moreover, the fact that the registrations which are required to be obtained for vehicles, under UAE law, indicate that the car was registered in the name of the importers, induces one to conclude that the said car was ‘in use’ by the importers, the mere fact that Standard & Chartered Bank at a given time repossess them and sold them by auction will not debar the import of the said car to India by the said importers when they have obtained a certificate of export from UAE Police Department; intermittent use, would not disqualify the imports. The investigations conducted by Directorate of Revenue Intelligence do not reveal any misrepresentation in obtaining the UAE Government Department documents as is being made out in the grounds registered before us. We, therefore, cannot rely on documents issued by Standard & Chartered Bank to deny the benefit of the Public Notice since these documents in any case do not prove the repossession or ownership of the car, throughout the period when the vehicle is proved to have been registered with the importers, as is evidence from the documents maintained by the Government Department of UAE viz. the registration certificate and the permission to export. A document maintained by the Government Department will definitely be acceptable over the fax from the Bank, which does not indicate what is being alleged – that is the car was not in use of the importers for more than one year before their return to India.
(c) As regards the plea of having given incorrect addresses on the bill of entries, it is common knowledge that there is no bar and ban on a person shifting his address. The importer has not only presented themselves to the investigators but have also claimed the cars before the Hon’ble High Court of Bombay by filing Writ Petition. They have not assumed an identity and are not fictitious persons. As regards the amounts, not being sufficient in their banks, to pay the duty, that cannot be a consideration to confiscate the vehicle. They should have been given an opportunity to pay the duty and if that payment was not as required under the Exim Policy Public Notice, then the issue could be suitably raised.
(d) As regards the cars having 3000 km. The plea goes to prove that the car was ‘in use’ and the plea of ignorance of diesel prices in UAE would not induce to deny the benefit of the EXIM POLICY to the importers since it is not one of the prescribed conditions in the relevant Public Notice. The incomplete investigations and lacunae herein cannot be filled by such extraneous allegations. No force is therefore found in the grounds raised by revenue.
(e) In view of findings arrived, no grounds are found to upset the order of the lower authorities.
7. In view of our findings, these three appeals are rejected.
(Pronounced in open Court on 2/09/2003)