Judgment:
1. The above appeal has been preferred against the order of the Commissioner of Customs, New Delhi imposing a penalty of Rs. 1 lakh on the appellant herein, in addition to confiscating certain cars imported in the names of different persons.
2. The brief facts of the case are that the Directorate of Revenue Intelligence, New Delhi (hereinafter referred to as DRI) received the information that passenger cars of various makes were being attempted to be imported into India fradulently by a group of persons in violation of provisions of I.T.C. Intelligence further revealed that the appellant herein was involved in the clearance of cars imported into India fraudulently by misuse of Transfer of Residence Rules. On the basis of this intelligence, the DRI officers visited the Air Cargo Complex, IGI, New Delhi on 16-9-1994 and identified 13 such cars which were imported and pending clearance. On the same day, the business and residential premises of the appellant was searched and certain documents were recovered therefrom. The statement of the appellant was also recorded on the same date and from his statement and from the documents recovered, it was revealed that he was actively associated in the import and process of Customs clearance in respect of five cars detailed below :- ____________________________________________________________________ Airway Description Vehicles Name of the person Bill No of Vehicles Identification in whose name the car was Imported1. -074-4617 7132 BMW 3161/4 CH No. Sh. Bhupinder Singh dated 10-6-1994 WBACA 72020 C- 1/126, Lawrance AF 10604 Road, New Delhi 2.
220-9708 8073 Mitsubishi CH No. CONV Sh. Abdul Samad dated 26- Pajero 445 PJO00973/E Wazir Khan, Kalyan 5-1994 No 7261 Bell Bazar, JSC3. 22009708 7336 Honda Accord CH No 210364 E Chawl (Mah) Sh.
dated 12-5-1994 No. 300-347 Hassainar, B-48/J, Sheikh Sarai II, New4. 270-3702 3271 Mitsubishi CH No. CONV Delhi Sh. Charanjit dated 2-6-1994 Pajero 440 PJO 1306 E Singh, Sh. Joginder No.4504 Singh, R No. B/2/24,5. 074-3171 1035 Toyotta CH No. EEO Sh. Vinod Rai, 1/73, dated 13-6-1994 Corolla 3031692 E No WMS, Kirti Nagar, New 4E/10481939 Delhi 3. In his statement, the appellant had deposed that he was looking after the business of M/s. Air & Sea Cargo Movers of which the Proprietor was his father and on his behalf, he looked after import and export through M/s. R.B. Nath Lamba & Sons; that he had started clearance of cars of foreign origin from ICD and Air Cargo, IGI Airport since May 1993; that Indian Passport dated 11-12-1990 recovered from his business premises belonged to one Shri Abdul Samad Wazir Khan who had come to his office in person and handed over his passport to somebody in the appellant's office along with signed documents such as blank bill of entry, Declaration form, etc. for the purpose of clearance of the imported car; that he had already filed bill of entry in respect of the cars imported by persons whose names occur in S1.
No's. 1,3,4 and 5 of the Table set out earlier; that Customs clearance paper for the car imported by person show in S1. No. 2 (Shri Abdul Samad Wazir Khan) were also being handled by him and were pending submission to Customs. Summons were issued to all the five persons detailed in S1. No 1 to 5 of the table. Shri Bhupinder Singh did not join the investigation but filed an affidavit dated 29-11-1994 wherein he claimed the ownership of the car. However, investigation by the DRI revealed that there was no person by the name of Bhupinder Singh at the address given in the affidavit and the persons living at that address could not furnish the whereabouts of Shri Bhupinder Singh. Summons to Shri Abdul Samad Wazir Khan were returned by the postal authorities with the remark 'not known at given address'. Statements of the other three persons were recorded. Further investigation was carried out and on that basis it appeared to the Customs authorities that :- (a) Shri Bhupinder Singh is not the real importer of the car and that it was Dimpy Kapoor (Rajiv Kapoor) who used Shri Bhuipnder Singh as a tool for importing the said cars in order to fraudulently avail of the Public Notice No. 202/PN/92-97, dated 30-3-1994 under which certain categories of eligible importers, for example, Indian Nationals or Foreign Nationals of Indian origin coming to India for permanent settlement, could import passenger cars and automobile vehicles subject to certain conditions, such as continuous stay abroad for a period of atleast two years prior to returning to India for permanent settlement, etc. and there was active role of Shri Bhupinder Singh, Shri Abdul Samad Wazir Khan and the appellant in illegal importation of the cars; (b) Car imported at S1. No. 2 of the Table above, was imported in the name of a fictitious person no such person as Shri Abdul Samad Wazir Khan exists and the car was fraudulently imported in his name with the connivance and collusion of appellant. The charge of the customs is also that the other three cars had been fraudulently imported and that there was a misuse of the provisions of the Public Notice dated 30-3-1994.
4. A show cause notice was issued on 12-12-1994 to the persons mentioned at S1. Nos. 1 to 5 of the Table set out above and also to Shri Dimpy Kapoor and the appellant, proposing confiscation of the cars under Section lll(d) and proposing imposition of penalty under Section [112(a)] of the Customs Act, 1962.
(a) Shri Bhupinder Singh is not the real importer of the car and somebody had misused his name and passport for the illegal import; (c) that the cars at S1. Nos. 3 to 5 of the Table were validly im-ported and hence not liable to confiscation. He therefore, confiscated the cars mentioned at S1. Nos. 1 and 2 of the Table. He dropped penal proceedings against Shri Bhupinder Singh and Shri Rajiv Kapoor but imposed a penalty of Rs. 1 lakh on the appellant herein holding that he had played an active role in the import of the cars imported in the name of Shri Bhupinder Singh and Shri Abdul Samad Wazir Khan. Hence this appeal.
6. I have heard Shri Naveen Malhotra, learned Advocate and Shri A.M.Tilak, learned DR. The finding of the Adjudicating authority as regards the car imported in the name of Shri Bhupinder Singh is contained in paras 35 and 36 of the impugned order in which it has been held that the appellant's failure to produce Shri Bhupinder Singh, fully establishes his connivance in the offence of fraudulent import of BMW car. It is significant to note that the charge in the show cause notice regarding this car was that Shri Dimpy Kapoor @ Rajiv Kapoor was the real importer (para 25 of the show cause notice). The Adjudicating authority who has rejected Shri Bhupinder Singh's claim of ownership of BMW car, has held that he is not liable to penalty since he had not appeared in the proceedings before the Adjudicating authority. He has also dropped penal action against Shri Dimpy Kapoor (who the department alleges is the real importer of the BMW car) on the ground that the only piece of evidence in support of this charge is the statement dated 27-9-1994 of one Shri Karan Singh, employee of M/s. R.B. Ramnath Lamba & Sons and this evidence is not sufficient to form the basis for establishing the charge. However, as far as the appellant is concerned, his involvement in the offence of fraudulent import of BMW car has been confirmed only for the reason of his failure to produce Shri Bhupinder Singh before the Customs Authorities. This, to my mind, is not sufficient for the purpose of holding that there was any connivance or collusion on his part so as to warrant imposition of penalty upon him.
6. As regards the Mitsubishi Pajero car imported in the name of Shri Abdul Samad Wazir Khan, the recovery of his passport and documents such as blank bill of entry, stamp papers and declaration form signed by him from the business premises of the appellant and the appellant's failure to produce Shri Abdul Samad Wazir Khan before the Customs authorities is not by itself sufficient to hold that the appellant had either connived or colluded in the fraudulent import of the car in question.
It is to be noted that the appellant is a Customs Clearing Agent and in the normal course of his business, he would be in possession of documents required for clearance of imported goods such as bills of entry etc. What is required for the purpose of establishing a link between the appellant and the fraudulent import is something more than this, and this vital link in the chain of events is missing. Since the evidence on record is not sufficient for driving home the charge of fraudulent import of the Mitsubishi Pajero car against the appellant, I extend the benefit of doubt to the appellant, set aside the impugned order and allow the appeal.