SUDH MOHINDER SINGH CHAHAL Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THIS appeal by party is filed against the impugned Order No. 1279/90 -BCH, dated 28 -8 -1990 of the Collector of Customs (Appeals) Mumbai, praying for setting aside the same. 1. The facts of the case are that the Appellant imported one Perrari Car with foreign Registration No. TED 274 cleared out of Customs by Yogesh Mehra as a power of attorney holder under Bill of Entry No. 870/16, dated 31 -7 -1984 against the CCP No. P/J/CL 8497/N/NF/88/H/88, dated 30 -9 -1983. After clearance, it was parked in M/s. A.V. Auto Works garage. Getting information about the ITC Violation in the import of car, the said car was detained along with two other cars No. MEF 3765 and GRJ 5314, which were also cleared from the Customs by Yogesh Mehra, as a Power of attorney holder of Surendra Kumar Mehta. After investigation and issue of show cause notice and receiving reply and personnel hearing, all the three cars were absolutely confiscated on 2 -3 -1989 by Deputy Collector of Customs, SIIB, and Rs. 1 lakh each was imposed on Appellant and Surendra Kumar Mehta, and Rs. 5 lakhs on Yogesh Mehra. In the appeal preferred by the appellant, against the above order Collector (Appeals) of Customs reduced to the penalty to Rs. 10,000/ - on the Appellant in the impugned order upholding the case of the Appellant in part, holding him as genuine person, and inducting negligence, and unconcerned with the imported car, in not even bothering to enquiry about the whereabouts of the car, and safeguarding his interest in it as owner of the same. Hence this appeal.

(2.) IN support of the appeal, the learned Counsel for the Appellant has submitted his argument that order under Section 47 of Customs Act, 1962 clearing the imported car is a quasi judicial order, which cannot be questioned under the show cause notice under Section 124 of Customs Act, 1962 but the only recourse is under Section 129D of Customs Act, 1962 as per 1987 (28) E.L.T. 63 Bombay High Court judgment. The reliance of 1989 (39) E.L.T. 316 (Tribunal) in the orders of lower authorities in this case differs on facts, as violation under Section 111(o) of Customs Act, 1962 for which show cause notice could be issued, according to which imported goods could be confiscated when it was cleared for home consumption, subject to condition, when it was not complied. In the instant case only Section 111(d) of the Customs Act, 1962 is involved. When CCP is validly issued to Appellant absolute confiscation is not justified as per 1996 (85) E.L.T. 286. So the orders under challenge are not legal. The judgment of Delhi High Court in Jain Shudh Vanaspati v. U. O.I. in 1982 E.L.T. 43 (Del.) is not stayed by the Hon'ble Supreme Court in SLP. The observation in the orders of lower authorities is not correct and wrongly interpreted. The said decision is not stayed, nor over ruled. It is applicable to the case on hand. When the imported car was paid duty under Section 179 of Customs Act, 1962 and cleared by proper officer under Section 47 of Customs Act, 1962, it cannot be seized again in 1987 and also confiscated in 1989. Action of the Respondent is without jurisdiction. No objection was raised at proper time by the department, while filing Bill of Entry, payment of duty, and clearance by proper officer under Section 46 of Customs Act, 1962. The department is stopped from raising any sort of objection, after 5 years from the clearance of car. There is no evidence to hold that the Appellant was only a name lender and main beneficiary is Yogesh Mehra. Negligence of Appellant, if any in taking care of his car, after clearance is no ground for confiscation. He was placed in such a position that he had to build up finance, after destruction of his family in Delhi riots, and shattering him, mentally and physically, after getting job. It is only thereafter he came to Bombay in 1989 and learnt from the garage owner and immediately approached by the letter dated 12 -9 -1989 to department and sought for release of car. The circumstances therefore cannot be adverse to confiscate the car. The Appellant is the owner and importer of Ferrari Car. The action of Yogesh Mehra is well within the power of attorney given by him, which is accepted by J.C.C.I. and E. Bombay and acted upon, without raising any objection. The impugned order contrary to it cannot stand. The impugned order suffers from non -application of mind, and reasoning to rebut the case of the Appellant. There is no finding of sale of car by Appellant to Yogesh Mehra, even if sold it is a post importation act, which is beyond the jurisdiction of Custom authorities. Confiscation under Section 111(d) of Customs Act, 1962 is bad in law. There is no bar under the present policy to sell the imported car, which is a procedural law, having retrospective effect, which is not at all considered by the lower authorities. On extraneous consideration and bias they are passed. If really Yogesh Mehra was the beneficiary, he would have got repaired the car and used it. The car would not have been found in the garage for seizure. The learned DR has argued that impugned order is quite exhaustive and well considered. Circumstances of the case clearly goes against the Appellant. If really car was very much heavily damaged, there would have been an insurance claim which is not done. Appellant has lost interest after giving the power of attorney in favour of Yogesh Mehra, who has paid duty of the imported car, and kept the same in the garage alone with two other cars, Simultaneously imported and cleared with power of attorney by him by paying duty. The only circumstances is that it cannot be for nothing else, but to dispose off for his benefit. Yogesh Mehra or garage owner were not aware of whereabouts of the Appellants after the imported car was parked in the garage. So the impugned order has to be upheld, which has also consider the Appellant's case with broader approach.

(3.) THE point for consideration is whether there are sufficient and satisfactory grounds to set aside the orders of lower authority. Our finding is in the affirmative.