Judgment:
1. These are two appeals filed by the above appellants involving a common issue. Hence they are clubbed together and are being disposed of by this common order.
2. Shri. Sanjeev Saraswat, learned Counsel appearing for the appellants submitted that the point to be considered in these two cases is whether the short-levy demanded is barred by time or not in terms of Section 28 of the Customs Act, 1962. Referring to the Section 28 of the Customs Act, he said that to issue notice for such short-levy it should be within one year in the case of any import made by any individual for his personal use or Government or by any educational research or charitable institution or hospital and in any other case it should be within six months. He submitted that Section 28(a) is not applicable in this case because of the fact that the importer was neither individual nor car was used for personal purpose and accordingly the demand was barred by time since the show cause notice was issued after prescribed time limit of six moths under Section 28(b). He said that the car had been purchased by M/s. Rolls-Royce Limited and the entire cost was borne by them. The Car was imported as early as in 1983 covered by the Import Policy 1982-83 and during that period an individual was not permitted to import foreign car in question. Accordingly the appellant had applied to the Chief Controller of Imports & Exports, Ministry of Commerce, New Delhi for customs clearance permit for the import of Mercedes Benz Model 280 S under category 'H' of Appendix 6 of the Hand Book for 1982-83. Hence the subject car has not been imported by an individual but imported as sole representative of Rolls-Royce Limited, U.K. and the car has in fact been imported by the said foreign principal as per stipulation contained in category 'H' of Appendix 6 of Hand Book of Import-Export Procedures 1982-83 at page 131 and as per conditions attached to the Customs Clearance Permit. Since the car has been imported by the Company for its office use, it cannot be said that it has been used for personal use. On both the counts Section 28(a) is not applicable and the demand was barred by time as envisaged under Section 28(b) of the Customs Act.
3. Shri A.K. Singhal, learned JDR arguing for the Revenue submitted that the conditions prescribed for importation of foreign car in category 'H' Appendix 6 Hand Book of Import-Export Procedures 1982-83 is not a criteria to decide the issue of limitation since the two statutes are altogether different. As per provisions of the Customs Act the appellant is an importer and it is clear from the declaration given in the bill of entry that car was imported in his individual capacity.
Since it was imported in his individual capacity and used for personal purpose time limit is applicable as prescribed under Section 28(a) of the Customs Act and accordingly it was not barred by time.
4. We have considered the matter. It was argued that the appellant could not import the car in question but for the fact that he was the sole resident representative of foreign Company and import was covered under category 'H' of Appendix 6 of the Hand Book for 1982-83 as it is evident from the Customs Clearance Permit granted to him by the Ministry of Commerce. Since the car has been imported on behalf of the foreign Company and the entire cost was met by the foreign Company it cannot be said that it is an individual import and accordingly the demand was barred by time under Section 28 of the Customs Act. Relevant portion of Section 28 is reproduced as under :- "Notice for payment of duties not levied, short-levied or erroneously refunded. - (1) When any duty has not been levied or has been short-levied or erroneously refunded, the proper officer may, (a) in case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, within one year; According to Section 28 of the Customs Act, the notice for recovery of short-levy can be issued upto one year in the case of individual and other public institutions as specified in Section 28(a) and in any other case within six months. In the case of individual not only import must be made by an individual but it must be for his personal use. In the legal terminology person includes an individual, partnership concern, company etc., company is a person in the eye of law. But it is not a natural person. It can buy property and it becomes the owner of the property. Somebody should represent the company in finalising the transaction. In the instant case, sufficient evidence was brought on record to show that the appellant represented the company in importing the car. He obtained the Customs Clearance Permit as representatives of the Company to import the car and the entire cost of the car was met by the foreign company. This piece of evidence was not rebutted by the Department. Hence the act of Agent is binding on the company. The mere fact that declaration was in individual name in the Bill of Entry is not a ground to hold that the car was imported by him in his individual capacity in the facts and circumstances of the case. Since the term individual has been used in Section 28(a) and the car was imported on behalf of the Company, it cannot be said that import was covered by under Section 28(a) of the Customs Act.Indian Potash Limited, v. Collector of Customs reported in 1991 (55) E.L.T.236 (Tribunal), the Tribunal held that the Agent of M.M.T.C. is not the importer in spite of the fact that the Bill of Entry had been filed in the name of Agent. In that case the M.M.T.C. authorised Indian Potash Limited to handle the imported fertilizers and arranged clearance through Customs. From a letter dated 30-3-1987 from the Secretary, Department of Fertilizers to the Secretary, Department of Revenue, it is seen that Indian Potash Limited is only an Agent of the Government of India in the Ministry of Agriculture and that the importer was the Ministry of Agriculture and that Indian Potash Limited had complied with all the requirements under the Fertilizer (Control) Order for the sale of M.O.P. It was held that Indian Potash Limited was not the actual importer. The importer was the Ministry of Agriculture and later, the imports were canalised through M.M.T.C. The appellants were merely handling agents for potassic fertilizer and for clearance of M.O.P. through Customs. The fact that some bills of entry had been filed by the party and that the requisite declarations were made by them would not, in itself, be conclusive of their status as handling agents, the actual importer being the Ministry of Agriculture/M.M.T.C.In the instant case the appellants were not permitted to import the car in their individual capacity because of restrictions imposed but cars were imported as representatives of the foreign company and respective foreign company is the owner as well as the importer of the cars since the entire cost was met by the companies. In view of this we find that there is some force in the arguments advanced on behalf of the appellants that it is not an individual import and the car is not for personal use since it was purchased on behalf of the company. In the view we have taken these two appeals are allowed.