HARINDER SINGH Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) THESE are four appeals arising from the same set of facts. They were heard together and are being disposed of by this order. Shri J.M. Sharma, ld. Consultant appeared for the appellants and Shri Panchatcharam, ld. JDR appeared for the respondent Collector.

(2.) WE deal with the different appeals as under : -

(3.) BRIEF facts are - Shri Harinder Singh, holder of Indian Passport No. E -134764 had entered the Indo -Pakistan Land Customs Border at Attari Road, Amritsar in a Toyota Crown Car (chassis No. 133 -003851 -Registration No. 15405 - Year and Model No. 1988). He filed Bill of Entry No. 135/91, dated 9 -2 -1991 seeking clearance of the vehicle without payment of Customs duty in terms of Notification No. 258/90 -Cus., dated 23 -10 -1990 under which Motor Cars when imported into India by Indian Repatriates from Iraq or Kuwait through the Land Customs Station at Attari, Amritsar were exempt from the whole of the duty of Customs liable thereon subject to the conditions contained in the notification. The Customs authorities detained the said vehicle on the basis of prior intelligence report that a group of persons was importing cars on forged documents. On examination of the Registration Book and other documents it was revealed that the said car was registered in the name of Shri Ajaib Singh and not in the name of Shri Harinder Singh and the Regn. No. 3842 registered in Kuwait was in the name of Shri Ajaib Singh. Accordingly, Show Cause Notice dated 24 -6 -1991 was issued alleging that the impugned vehicle had been imported in contravention of the provisions of the Imports (Control) Order No. 17/55 as amended read with Section 11 of the Customs Act and therefore the said vehicle was liable to confiscation under Section 111 of the Customs Act. The noticee was further asked as to show why the benefit claimed by him under Notification 258/90 should not be denied and why penalty should not be imposed under Section 112. The allegations were denied by the noticee and in defence it was contended that the registration in respect of the impugned vehicle had been issued by the Government of Iraq in the name of Shri Harinder Singh and the same had been confirmed by the Embassy of Iraq and also authenticated by the Ministry of External Affairs; Government of India; that after invasion of Kuwait by Iraq, the Iraqi authorities had directed that all vehicles should be got registered afresh and accordingly the Registration Book was issued after verification of all the particulars and after the vehicle was made available for inspection by the Registering Authorities. The name of Shri Ajaib Singh got incorporated in the Registration Book due to a mistake since Shri Ajaib Singh had written a letter to the Indian Embassy Baghdad (Iraq) and the said Embassy had cleared the documents in a routine manner because of the large rush of documents required to be processed by the Embassy relating to all the repatriates at that time. Further, Shri Ajaib Singh had himself admitted that the said letter was issued by him under mistake. Shri Harinder Singh contended that he had purchased the said car from M/s. Mohd. Nasder and Sons of Kuwait and subsequently because of the invasion of Kuwait by Iraq, he had to leave Kuwait in great hurry and because of that he was not in a position to produce the title documents for consideration of the Customs Authorities. It was also contended that he was not aware of the requirements of Notification No. 258/90 and that he had acted in good faith and had not committed any violation of the Import (Control) Order or any other law. The Collector, after considering the reply and the submissions made before him during the adjudication, found that Paragraph 135 in Chapter IX of Import and Export Policy applicable for the period April, 1990 to March, 1993 provided that Indian Nationals returning to India for permanent settlement could import cars on the condition that he had stayed abroad continuously at least for a period of two years and the vehicle had been in his use for at least one year prior to his return to India. Collector found that the appellant Shri Harinder Singh had not produced Customs Clearance Permit issued by the Import Trade Control Authorities nor he had shown any evidence that he had applied for grant of such customs clearance permit. Collector therefore found that the import of the said car was unauthorised and the allegation of contravention of the Imports (Control) Order read with prohibitions imposed under Section 11 of the Customs Act stood established against the appellant Shri Harinder Singh. Collector also held that the vehicle had become liable for confiscation under Section 111(d) of the Customs Act. As regards the claim of appellant that he had fulfilled the conditions of exemption Notification No. 258/90, Collector observed that though in the Registration Book the number of the vehicle was shown as 3842 and issued in the name of Shri Harinder Singh, Bill of Entry No. 135/91, dated 9 -2 -1991 showed its registration No. as 15405 of Iraq. Besides, the letter dated 8 -1 -1991 issued by the Indian Embassy in Baghdad (Iraq) showed that the car bearing Regn. No. 3842 of Kuwait (impugned car) belonged to Shri Ajaib Singh and not Shri Harinder Singh. Collector also referred to expert's opinion obtained by the Department as regards the year of manufacture of the vehicle under dispute. The said expert had opined that the year of manufacture of the vehicle was April, 1990 and not 1988 as claimed by Shri Harinder Singh and therefore the Registration Book produced by him could not have been genuine. Collector therefore held that appellant has not been able to establish that the impugned Motor Car stood registered in the name of Shri Harinder Singh in Kuwait/Iraq before 31 -7 -1990 and therefore he was not entitled to the exemption under Notification No. 258/90. Collector also held that the exemption has to be denied on another ground, viz., that the Wife of Shri Harinder Singh, Smt. Ravinder Kohli had also imported another car. As the Notification No. 258/90 allowed duty free import only for one car per family, the claim for duty exemption for import of the impugned Toyota Crown Car was denied to appellant Shri Harinder Singh. As regards imposition of penalty, Collector found that since appellant had committed violation of the Import (Control) Order read with Section 11 of the Customs Act, the car had become liable to confiscation and such omission rendered the goods liable to confiscation as well as to penalty under Section 112 of the Customs Act. Since the exemption notification allowed duty free import of only one Motor Vehicle for a family, and the appellant had admitted to the import of more than one car and but for the vigilance exercised by the Customs Officers, he would have been able to import more than one car. Mens rea had therefore been established attracting penal action, held the Collector.