GERSON DA CUNHA Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) CIVIL Appeal No. 6989 of 2004; Civil Appeal No. 7593 of 2004: Though the dispute which is involved in these appeals is in a narrow compass, we would like to mention those facts leading to the filing of these appeals by the present Appellants. One Mr. S.A. Futehally (hereinafter referred to as applicable to Service Tax importer) was the sole proprietor of M/s. Ashiya Motors which was the franchise of M/s. Volkswagen AG, Germany. During the period from 1987 -1999, a total of about 71 Audi cars manufactured by M/s. Volkswagen were imported by him into India through Bombay (now Mumbai) and Nhava Sheva Ports. In the Bills of Entries which were filed by said importer, he mentioned that the engine capacities of these cars were less than 1600 CC. On this declaration, the cars were assessed and cleared. However, investigation into these imports were taken up by the Directorate of Revenue Intelligence in November, 1989 when it was noticed that the cars were actually of higher engine capacity. It was also noticed that the prices declared in the invoices was lower than the actual purchase price/commercial prices. On this basis, show cause notices were issued against the said importer. The show cause notices were also issued against these two Appellants namely, Mr. Atul H. Mehta and Mr. Gerson Da Cunha and the reasons for issuance of notice against these persons shall be recorded at a later stage. After adjudication of the matter, a common order was passed by the Collector confiscating these cars and penalties were also imposed on the said importer as well as the aforesaid Appellants. The said importer Mr. S.A. Futehally challenged the order of the Commissioner by filing appeals before the Customs, Excise and Service Tax Appellate Tribunal, Mumbai (hereinafter referred to as CESTAT). The Appellants also challenged the orders. The CESTAT dismissed all these appeals.

(2.) MR . Futehally had filed appeals against the orders passed by CESTAT in this Court being Civil Appeal Nos. 6598 -6600/2005 and Civil Appeal Nos. 7048 -7071/2004. These appeals have been dismissed as abated by separate orders passed on 22 -4 -2015 because of the reasons that Mr. Futehally died during the pendency of the appeals and his legal heirs have decided not to continue with the matters and therefore, did not bring themselves on record.

(3.) NOW we come to the role of two Appellants. Insofar as Mr. Atul H. Mehta is concerned, he was in some employment in Singapore from September, 1984 to January, 1988. He was interested in importing one Audi 80 Car on his return to India for which he had filed import licenses. He, thus, imported that car and for clearance thereof, he engaged the services of M/s. Ashiya Motors, Mumbai, sole proprietorship concern of Mr. Futehally. Mr. Futehally filed the bill of entry in which he committed the same mischief by disclosing the engine capacity of the said car to be below 1600 CC.