COMMISSIONER OF CUSTOMS Vs. ABDUL KAREEM POKU

JUDGEMENT

(1.) THE two connected Customs Appeals are filed by the Department and the Writ Petition is filed by the importer to release the 'Toyota Land Cruiser Car' imported by him in the year 2007. The importer filed Bill of Entry for release of the car along with invoice of purchase of the vehicle from a "used car" dealer in Dubai. The vehicle was declared as a "2000 model". However, on inspection it was noticed that chassis number was damaged and corrected and over the engine number, in the engine block, a metal plate was fixed covering the original number and with a new number. The vehicle was examined in the presence of witnesses and also expert from the Police Department. There was no dispute that tampering of chassis number was done and also an attempt was made to tamper the engine number by fixing a vague number on a metal plate which came out of the car in the course of examination. The department referred the details to the authorised dealer in India of Toyota Motors, Japan, which by referring to the Engine number stated that the car would be of 2004 make.

(2.) THE adjudicating officer, after hearing the importer, found manipulation of engine and chassis numbers and therefore, besides confiscation, he levied personal penalty of Rs. 1,50,000/ - under Section 112(a) of the Customs Act, 1962. When the importer filed appeal before the Commissioner (Appeals), the Commissioner agreed with the valuation made by the adjudicating authority at Rs. 10,19,174/ -. However, he set aside the order of confiscation and directed release of vehicle on payment of duty and redemption fine which was fixed by the Commissioner of Customs (Appeals) at Rs. 2,00,000/ -. The personal penalty was also reduced to Rs. 75,000/ -. When the department as well as importer filed appeals before the Tribunal, in principle, the Tribunal upheld the order of Commissioner (Appeals) for release of the vehicle on payment of modified redemption fine at Rs. 1,00,000/ - and personal penalty at Rs. 50,000/ - (2012 (279) E.L.T. 468 (Tri. -Bang.)). It is against this order, the Department has filed two separate appeals. The Writ Petition was filed by the importer for release of the vehicle without any delay.

(3.) THE undisputed facts, it appears are that, the importer, an uneducated person, was used as a name lender by some others for importing the vehicle. He does not understand any English and was assisted by counsel even for examination of the vehicle. However, the statement is recorded in Malayalam and the same is not retracted by him until show cause notice was issued. The tampering of chassis number and engine number are admitted, though the importer disowned it by saying that his friends would have done it. Delay in completion of adjudication is on account of the tampering and to get the expert opinion and all other allied complications created by the importer himself. The standing counsel submitted that the vehicle is rightly confiscated on account of manipulations done by the importer, with the clear intention to import the vehicle by changing the chassis number and engine number to make it appear that the vehicle was older than its actual model. Even though we find force in the contention of the standing counsel, what we notice is that the main ground for absolute confiscation is disentitlement of registration of the vehicle for want of clear chassis number and engine number. The Department has a further case that the vehicle was not in possession of the importer for one year prior to the import. However, the counsel for the importer submitted that so long as there is no TR claim, there was no requirement for ownership of minimum of one year prior to the import.