ORDER
T.P. Nambiar, Member (J)
1. This Appeal is directed against the impugned Order No. Col./Cus./Addl. Collr./14/88, dated 31-5-1988 passed by the Additional Collector of Customs & Central Excise, Shillong ordering, inter alia, absolute confiscation of Toyota Car No. BCP-0112 worth Rs. 60,000/-, for which the appellant has claimed ownership, and in the Appeal Memo, as well as during the course of hearing, has prayed for its release.
2. Briefly stated the facts of the case are that the above-mentioned Toyota Corona Delux car (made in Japan) was seized at Kokrajhar, Assam by the Customs Preventive staff on 23-11-1986 from the possession of Shri M.G. Agarwala of Assam Industries, Kokrajhar on the reasonable belief that the same has been procured by him in contravention of the provisions of Section 3(1) of the Import-Export Control Act, 1947 read with Section 11 of the Customs Act, 1962. On interrogation about the possession of the car M.G. Agarwala stated in writing on 23-11-1986 that the car, which was not in working condition, belonged to his friend one Shri Dawa Kukpa of Gaylegphug, Bhutan and had been left to his premises on 22-11-1986 for repairing purpose and the documents pertaining to the car were lying with Dawa Kukpa. On search, conducted by the Customs Officers of Dhubri on 25-11-1986 (i) mortgage deed, (ii) a sale deed, (iii) a kaccha receipt dated 17-10-1982 showing receipt of Rs. 15,000/- by Smt. Lhakpa Dukpani were found in the residence of M.G. Agarwala; and other papers relating to the seized car were recovered from the office premises of M/s. Assam Industries. M.G. Agarwala stated that the documents were owned by his friend one Ashok Kr. Moth of Gaylegphug, Bhutan and had been left to his place during his visit last month. On 1-12-1986 M.G. Agarwala appeared before the Superintendent, Customs & Central Excise, Dhubri and submitted a written statement stating therein inter alia that he had failed to contact Shri Moth. The said car was kept under mortgage to Shri Ram Awatar Agarwala of Kokrajhar, Assam against NU-42,000/- on 14-7-1982 and the said mortgage agreement was sent to his brother Shri Ram Awatar Agarwala by Smt. Lakpa Kukpani through a messenger requesting him to pay him the said amount which was not all given. The said mortgage agreement was left to his place by the said messenger through mistake. The kaccha receipt dated 17-10-1982 stating of a house loan of Rs. 15,000/- taken by Smt. Lakpa Dukpani from M/s. Assam Industries, Kokrajhar was actually given to her by their firm. Subsequently Shri Ashok Kr. Moth of Gaylegphug, Bhutan was summoned to appear before the Superintendent (Prev.) Dhubri on 10-12-1986, but Shri Moth did not attend on the stipulated date. On the other hand Miss Sangey Cholden, daughter of Shri Dawa Kukpa and Smt. Lhakpa Dukpani of Gaylegphug voluntarily appeared before the investigating officer on 10-12-1986 and stated that at present she is the real owner of the Toyota Car BCP No. 0112 after the death of her mother, though the Registration of the car has not been transferred in her name. Further, no transaction of money was made by her or her mother for sale/mortgage of the car either to Shri Ashok Kr. Moth or to Shri Ram Awatar Agarwala of Assam Industries, Kokrajhar.
3. Shri Phani Chakraborty, owner of M/s. Chakraborty Motor Works, Kokrajhar submitted in his written statement dated 1-12-1986 that he used to repair the vehicle No. BCP-0112 of M/s. Assam Industries from time to time. As desired by the owner of M/s. Assam Industries on 21-11-1986 he brought the tie rod end of the Toyota Car for repair. Repairing and payment thereof is made by M/s. Assam Industries, Kokrajhar.
4. In a questionnaire statement subscribed before the Customs Officer, Kokrajhar, Shri Chakraborty submitted that there was no specific driver using the car. Shri Madan Gopal Agarwala of Assam Industries directed him to carryout the repair work and used to pay him for the repair works.
5. On interrogation by Customs Officers Ram Awatar Agarwala stated on 28-4-1987 that Madan Gopal Agarwala is his elder brother and also confessed that he had an agreement with Mrs. Lakhpa Dukpani and gave her a loan of NU-42,000/- against mortgage of the said car on 14-7-1982. Dawa Kukpa has got business relation with M/s. Assam Industries and he did not know anything about the transaction of Rs. 15,000/- between his firm and Mrs. Dukpani. They had no business or personal relation with Shri Ashok Kr. Moth of Gaylegphug, Bhutan. The car is owned by him by way of forfeiture of the mortgage agreement and neither Madan Gopal Agarwala nor M/s. Assam Industries are the owner of the car. But the transfer of the car in his name had, however, not been done.
6. Further investigations were done in the matter and a Show Cause Notice was issued on 21-5-1987 to all the parties concerned including the present appellant stating as to why penalty should not be imposed. After the adjudication proceedings, learned Additional Collector ordered the absolute confiscation of the vehicle in question and imposed a personal penalty of Rs. 10,000/- on Ram Awatar Agarwala under Section 112B Clause (1) of the Customs Act, 1962. He dropped the proceedings against M.G. Agarwala. As far as the appellant is concerned, who was also heard by the Collector, no penalty was imposed on her. The appellant has filed this appeal on the ground that after the death of her mother she has become the legal owner of the car and there was no sale or mortgage at any time. Therefore, the appellant is also aggrieved of the order of the Collector and the car should be released in her favour.
7. Shri P.C. Mukherjee, learned Consultant appearing for the appellant contended that late Lakhpa Dukpani had business transactions with M/s. Assam Industries and she very often used to travel by the car in question. The learned Consultant also stated that the appellant used to purchase timber from Assam Industries and during the third week of November the appellant went to Assam Industries in the abovesaid car for collecting outstanding dues. Since the car was giving trouble it was kept with the Assam Industries with a request to the Proprietor to arrange for necessary repairs. The repair was done on 22-11-1986 and on 23-11-1986 the car was seized by the Customs. He emphasised that there was no sale or mortgage of the car. It was also contended that the appellant had contacted the Customs authorities and claimed ownership of the car. The learned Consultant also brought to the notice of the Bench contents of the letter dated 4-12-1986 written by the Regional Revenue and Customs authority of Gaylegphug, Bhutan to the Supdt. of Customs and Central Excise, Dhubri requesting release of the car to the appellant inasmuch as per Bhutan records the vehicle in question possessed valid documents and did not violate any law. The learned Consultant urged that this letter was not taken note of by the learned Additional Collector. Several correspondences were made by the appellant for the release of the car, which show that the appellant is the owner of the car but in spite of all these, the learned Collector erren in not relying on the same. It was further contended that the show cause notice which was issued containing charges under provisions 3(1) of the Import & Export (Control) Act, 1947 read with Section 11 of Customs Act, 1962 is not in accordance with the law. Reply of the appellant was not taken into consideration. The charges were made against M.G. Agarwala whereas penalty was imposed on Ram Awatar Agarwala and charges on M.G. Agarwala was dropped. He also contended that even assuming that a temporary mortgage was there, it will not contravene any of the provisions of the Import & Export Act. It was further contended that the Royal Government of Bhutan would not have written the letter to the Customs authorities of India if there was any such transaction. He also contended that there is no material to show that the subject car is transferred to a citizen of India. Even now the tax for the car is being paid in the name of the appellant’s mother. He contended that for all the above-mentioned reasons the car may be release and the appeal may be allowed.
8. The learned JDR Shri P.C. Jain stated that during the search incriminating materials were recovered from the premises of Assam Industries and also from the residence of M.G. Agarwala. He brought to our notice an agreement dated 14-7-1982 entered into by Lhakpa Dukpani, mother of the appellant. In that agreement she had agreed to mortgage the car till the liquidation of her loan of NU-42,000/- which she took from Ram Awatar Agarwala. There is another document which is a Sale Deed dated 17-3-1986 signed by the present appellant in favour of Ashok Kr. Moth. The learned DR also relied on the search list conducted in the residence of M.G. Agarwala from where the sale deed and agreement were seized. It was therefore contended that there was a sale transaction. He also contended that though it was claimed that the car was left on 22-11-1986 there is a statement of Phani Chakraborty, owner of Chakraborty Motor Garage, stating that he has repaired the said car of M/s. Assam Industries. He also stated that he had been conducting repair on this car (No. BCP-0112) from 1982. It was therefore contended that this statement would negative the contention of the appellant that the car was brought only on 22-11-1986. It was also contended that nowhere in the reply the parties have stated that this statement is unreliable and nobody had desired any cross-examination. The circumstances in this case will go to show that the car was actually sold to Ram Awatar Agarwala. Therefore, he justified the conclusions of the learned Additional Collector.
9. The point that arises for our determination is whether there are any ground in the orders of the learned Additional Collector. It is now seen that Annexure ‘A’ to the Appeal Memorandum is a letter dated 4-12-1986 written by the Regional Revenue & Customs Office, Gaylegphug, Bhutan to the Supdt. of Customs & C.E., Dhubri, Assam wherein it was stated that the vehicle bearing Bhutan Registration No. BCP-0112 was under the ownership of late Mrs. Lhakpa Dukpani. It was also stated that the scrutiny of the records of their office proved that the vehicle possessed valid documents. Therefore, they stated in the letter that the vehicle may be returned to the owner. However, that letter merely stated that in the registration of the Bhutan Government, the said car stood in the name of appellant’s late mother. Admittedly the agreement deed and the mortgage were not in the possession of that authority when that letter was written. On the basis of their official records they had written that letter and therefore that letter will have no value as far as the present car is concerned.
10. The learned Consultant Shri Mukherjee contended that this agreement as well as the Sale Deed Agreement are not acted upon and they were simply lying in the garage of M.G. Agarwala. Such a plea cannot be accepted. They are actually seized from the garage of M.G. Agarwala. The first Agreement dated 14-7-1982 reads as follows :
“I hereby agreed to mortgage my Toyota Car No. BCP-0112 to Mr. Ram Awatar Agarwala C/s. Assam Inds., P.O. Kokrajhar, Dist. Goalpara, Assam (India) till liquidation of my loan of NU-42,000/- (Ngultrums Fourty-two thousand) only, which was taken from Mr. Ram Awatar Agarwala of Kokrajhar, Assam.”
Dated 14-7-1982 Sd/-
( LHAKPA DUKPANI)
Gaylegphug, Bhutan"
11. the Sale Deed Agreement dated 17-3-1986 reads as follows :-
"We, Mr. Ashok Kumar Moth, the Purchaser on the one hand and Mrs. Lhakpa Dukpani, the Owner/Seller on the other hand of the vehicle Registered No. BCP-0112/Toyota Car enter into a Sale Deed Agreement on this Day the 17th March, 1986 on clear payment amounting to NU-25,000/- (Ngultrums Twenty-Five thousand) only.
The dues of admissible Taxes, if any till the date will be paid accordingly by either of the parties concerned. As such, registration of Vehicle Regd. No. BCP-0112, Toyota Car may please be favoured in the name of Mr. Ashok Kumar Moth, the Purchaser,
Gaylegphug, Bhutan.
Sd/- Sd/-
Purchaser Owner/Seller
(Ashok Kumar Moth) (Mrs. Lhakpa Dukpani)
Gaylegphug, Bhutan Gaylegphug, Bhutan
Dated... Dated 17-3-1986
12. Thus, the above-mentioned Agreement dated 14-7-1986 reveals that Mrs. Lhakpa Dukpani late mother of the appellant had incurred a loan of NU-42,000/- and mortgaged the said car for the sum of Ram Awatar Agarwala, who is brother of M.G. Agarwala. This Agreement is further corroborated by the statement of the mechanic who is the owner of Chakraborty Motor Garage of Kokrajhar, Assam. Shri Phani Chak-raborty, the owner of the Garage, has stated that he used to repair the said vehicle. This fact has also been mentioned in the show cause notice. It was also mentioned in the show cause notice that Shri Chakraborty has given a statement that he had been repairing this car from 1982 and this statement had not been contradicted by the appellant in her written statement in reply to the show cause notice. Shri Chakraborty was not cross-examined by either M.G. Agarwala or Ram Awatar Agarwala, or by the appellant and no such request was made to the learned Adjudicating Authority. Therefore, this agreement along with the statement of Shri Chakraborty will show that the car was left with Ram Awatar Agarwala or in the alternative with M.G. Agarwala of Assam Industries. In fact, the search list goes to show that these papers were seized from the premises of M.G. Agarwala, who is none other than the brother or Ram Awatar Agarwala.
13. The appellant had given a statement to the Customs authorities stating that she is the owner of the car and no transaction was made by her or by her late mother for the sale or mortgage of the car either to Ashok Moth or to Ram Awatar Agarwala of Assam Industries. But the above-mentioned documents show that this statement of the appellant is not correct. The plea of the appellant that these documents are not acted upon cannot be believed as it is only an afterthought. So also, the letter written by the Regional Revenue & Customs Authorities of Bhutan have no value as they have written the letter by perusal of their records and not by a perusal of the above-statement documents and the evidence of Shri Chakraborty. Therefore, the unchallenged statement of Shri Chakraborty and the above-mentioned documents proves beyond doubt that the said car was given in the possession of Ram Awatar Agarwala from the year 1982 itself and not on 22-11-1986 as claimed by them and the appellant. It is no doubt true that the department has to establish that the car was given to Assam Industries and this fact cannot be presumed. It is also true that suspicion alone cannot take the place of truth but in this case there is no question of suspicion in view of the abovesaid Agreements and the Statement of Shri Chakraborty stating that he had been repairing the said car from time to time and that on one occasion he had even replaced the Tie rod of the car. This clearly indicates that the theory that the car was left on 22-11-1986 has no basis. In such circumstances, we are unable to accede to the contention of the learned Consultant that there is no evidence to prove the sale of the car or its mortgage to Ram Awatar Agarwala. The car was thus put in the possession of Ram Awatar Agarwala of Assam Industries from 1982 against a loan of NU-42,000/- which the appellant’s late mother had incurred from Assam Industries. It is not the case of the appellant that this amount is discharged and the mortgage is redeemed. In such circumstances, the only conclusion is that the car was given to Ram Awatar Agarwala against the debt which was incurred by the appellant’s mother. This proves that the car was given to an Indian national but the learned Consultant filed xerox copies of the token of this car and the tax paid receipt which shows that tax upto 31-3-1988 was paid in the name of the appellant’s mother. But a mere payment of the tax in the name of the appellant’s mother will not rebut the above-mentioned positive evidence which is produced by the department. For the purpose of hiding the sale transactions, these taxes might have been paid in the name of appellant’s mother but that by itself is not sufficient to disprove the above evidence which was produced by the department.
14. The learned JDR has stated in course of arguments that the signature of the appellant in the Vakalatnama and the Appeal Memo, is completely different from the signature in the reply to Show Cause Notice and the Sale Deed Agreement dated 17-3-1988. We have perused the signatures of the appellant in the Vakalatnama and the Appeal Memo. Here, the signatures start with the letter ‘S’ and the adjoining letters are not clearly legible. Also, a perusal of the appellant’s signatures in the reply to Show Cause Notice and in the Sale Deed Agreement reveals that they are clearly visible as ‘S. Chaeden’ and almost round in shape. Shri Jain also stated that in view of this difference in signatures it is doubtful whether the appellant has actually signed the Appeal Memo, and the Vakalatnama.
15. We do not have any positive finding on this aspect though we find that there is some disimilarity in the signature of the appellant in the Appeal Memo, and the Vakalatnama with her admitted signature in the reply to Show Cause Notice.
16. In view of the foregoing discussions and for the reasons as mentioned above, we are of the opinion that there is no case made out for interference with the orders passed by the learned Additional Collector of Customs & Central Excise, Shillong and accordingly we dismiss the appeal.