MOHAMMED HANEEFA SHANAVAS Vs. COMMISSIONER OF CUSTOMS, COCHIN

JUDGEMENT

(1.) THESE two appeals are being disposed off by this common order since they arise out of the same Order (Original) passed by the Commissioner of Customs, Cochin.

(2.) A car was imported and Bill of Entry along with the purchase invoice dated 25 -6 -98. Vehicle Registration book issued by UAE authority and copies of Vehicle Export Certificate issued by UAE authorities in the name of Shri Mohammed Haneefa Shanavas (hereinafter referred to as Shanavas), was filed for clearing at Cochin port. The Bill of Lading along with an affidavit signed on a stamp paper in the presence of Notary Public, one Shri O.T. Kesavan Nambiar, was filed and the goods were assessed and ordered to be cleared on payment of duty. On an information, the DRI authorities seized the Car, investigated the case and issued a notice proposing to confiscate the car. The relevant portions of the impugned order recording certain facts relevant as regards the appellants are as follows - 9. The residence of Shri Mohammed Haneefa Shanavas situated at Mananakku was searched by the Senior Intellignece Officer, DRI, Trivandrum on 16 -9 -99 but no incriminating documents or evidence were found. State Bank of Travancore NRI branch Attingal, vide their letter dated 16 -9 -99, enclosed photocopies of documents pertaining to NRE account 1684 of Shanavas. As per those documents, on 12 -8 -99, the account was opened on which date Rs. 50,000/ - was deposited. On 10 -9 -99 a deposit amounting to Rs. 17,50,000/ - by way of TELEX Transfer dated 9 -9 -99 from City Exchange Bur Dubai was received and cash for the draft for Rs. 16,93,481/ - and cash of Rs. 56,000/ - were withdrawn. Enquiries with Indian Overseas Bank, Varkala revealed that Shri Shanavas has been sending money on a regular basis, which is in conformity with his statement. 10. The house building situated at door number IV/181 of Thiruvalla Municipality, Manjadi, which was the address given by Shri Alex C. Joseph with telecommunication authorities and mobile phone standing in his name, was visited by the Senior Intelligence Officer, DRI, Cochin on 16 -9 -99 for conducting search in pursuance of the search warrant issued by the Deputy Director, DRI, Calicut. The said building was found locked. Hence Circle Inspector of Police Thiruvalla was contacted and in their presence and in the presence of witnesses the lock of the building was broken open and search conducted. Seven sets of keys, mostly of foreign made cars of different models, photocopies of four pages of two passports -H -386250 in the name of one Asha Shivasankara Pillai and A 270576 in the name of Mohammed Haneefa Shanavas, blank letter heads of AL ARAF GENERAL TRADING (similar to the exhibit furnished in the writ OP filed with the Honble High Court of Kerala stating to be the invoice of the vehicle under seizure imported in the name of Mohammed Haneefa Shanavas), mileage point statement addressed to Alex C. Joseph, used Indian Airlines ticket, blank letter head book of Alex C. Joseph, one receipt issued by Thiruvalla Municipality and LPG gas connection book in the name of Alex C. Joseph were among the things seized under a mahazar. The said premises were sealed after the search operations in the presence of independent witnesses, as no responsible person was available to take possession of premises. Statement of Shri Shanavas was recorded after considering the submission made by the two appellants herein, and the failure of the Investigators to record the statements from Shri Alex C. Joseph, and the material on records, the Commissioner came to the following findings as regards the appellant, Shri Shanavass role and liability - 51. Thus from the discussions made above and from the evidence on record, I find that enough material is available to conclusively prove that the vehicle imported does not belong to the importer, Shri Mohammed Haneefa Shanavas and that he has allowed his passport to be used for facilitating the illegal import of the car. Thus it has been clearly established that the Toyota 400 car has been imported in contravention of ITC P.N. 3/1997 -2002, rendering the same liable to confiscation under Section 111(d) of the Customs Act, 1962 read with Section 3(3) of the Foreign Trade (Development and Regulation) Act, 1992. It has also been established that the clearance of the car had been effected by submissions of false and fabricated documents, inasmuch as the fact that registration documents showing the vehicle to have been registered in the name of Shri Mohammed Haneefa Shanavas (importer) was produced before the Customs authorities for facilitating the clearance of the car, whereas, the importer himself has admitted that the car does not belong to him. For this act of misdeclaration, I find that the vehicle is liable to confiscation under Section 111(m) of the Customs Act, 1962. 52. I also find that for his act of allowing his passport to be used for facilitating the import of the car in contravention of ITC regulations and for making misdeclaration before the Customs authorities, the importer, Shri Mohammed Haneefa Shanavas is also liable for penalty under Section 112(a) of the Customs Act, 1962. As regards other appellant, Shri Alex C. Joseph, the Commissioner recorded the following findings about his role and liability - 53. The importer, in his statement dated 10 -9 -99, has stated that he had imported the car in his name on the advice of Shri Alex C. Joseph. A search conducted at the residence, the address of which was given by Shri Alex C. Joseph to the telecom authorities, resulted in obtaining photocopies of passports of the importer, Shri Mohammed Haneefa Shanavas and yet another importer of a car, Smt. Asha Shivasankara Pillai and several sets of keys pertaining to foreign cars. One such key had a key chain had the chassis number of the car, imported by Shri Mohammed Haneefa Shanavas, written on it. Blank letterheads of M/s. Al Araf General Trading, similar to the one in which an invoice for the car imported were produced by the importer before the Honble High Court of Kerala, were also recovered. The key with the chassis number of the subject car written on it, when checked with the car under import, showed that the key indeed belonged to the Toyota 400 car imported in the name of Shri Mohammed Haneefa Shanavas. These evidences show that Shri Alex C. Joseph has been clearly involved in the illegal import of cars into India in general and in the subject import in particular. Shri Alex C. Joseph has no doubt stated that, the residence searched by the DRI did not belong to him, but to his sister and that the search was conducted in the presence of witnesses who were coolies and not in the presence of local respectable people. However in the same letter he has stated that on closing down his office, he had shifted his telephone to his sisters house as he neither had a house nor an office in that area. From his very own submission it is very clear that, on closing of his office, he had shifted his telephone to his sisters house, he would naturally have shifted any other documents/materials from his erstwhile office to his sisters house. Thus it has been proved beyond any doubt that the materials recovered from the residence at Door No. IV/181 of Thiruvalla Municipality, do indeed belong to Shri Alex C. Joseph only. These evidences corroborate the facts stated by the importer in his statement dated 14 -9 -99 and I find that there is enough evidence to establish the role of Shri Alex C. Joseph in the import of the subject car in violation of ITC regulations and by misdeclaration. Thus, for his act of abetting the illegal import of the car, thereby rendering the car liable to confiscation under Sections 111(d) and (m) of the Customs Act, 1962, I find that Shri Alex C. Joseph is liable for penalty under Section 112(a) of the Customs Act, 1962. and ordered the confiscation of the Toyota 400 car imported under the provisions of Section 111(d) and (m) of the Customs Act, 1962 and gave an option to the importer to redeem the car, in lieu of confiscation, on payment of a fine of Rs. 5 lakhs. He also imposed a penalty of Rs. 1 lakh each on Shri M.H. Shanavas and Shri Alex C. Joseph under Section 112(a) of the Customs Act, 1962. Hence these appeals.

(3.) AFTER hearing the both sides and considering the material on records, it is found that -