Judgment:
Per Jyoti Balasundaram
Vide the impugned order, the Commissioner of Customs has ordered absolute confiscation of brand new Hummer H2 motor car valued at approx. Rs.26.39 lakhs imported by the appellant herein under Bill of Entry dt. 25.8.08, under the provisions of Section 111(d) of the Customs Act, 1962 and imposed a penalty of Rs.10 lakhs on the appellant under Section 112(a) of the Customs Act, 1962. Confiscation has been ordered for the reason that the appellant violated Licensing Note 2(II)(a)(iv) to Chapter 87 of the ITC (HS) Classification of Export and Import which stipulates that new vehicle should be imported from the country of manufacture the car in question was not imported from USA where it was manufactured, but from Thailand, and also for the reason that the importer had not complied with the conditions stipulated in Licensing Note 2(ii) (C) relating to the testing and certification of the new vehicles at the time of importation into India nor did he produce any Type Approval Certificate as required under Sl.No.7 of the Import Licensing Notes for claiming exemption from fulfilling the conditions at Sl.No.2 (II) (C) of the Import Licensing Notes. Absolute confiscation has been ordered on the ground that appellant is not the owner of the car as he could not afford such a costly vehicle but merely lent his name for importation of the car.
2. We have heard both sides. The importer does not dispute that there has been a violation both by impor from a country other than that of manufacturer, and non-production of Testing and Certification/Type Approval Certificate. The only prayer is that the car may be ordered to be released on payment of appropriate fine as there is no condition in the Policy about the financial status of an importer and once he has imported the car by borrowing money from his friend employed in Sharjah as claimed by him before the adjudicating authority, it is not open to the Commissioner to hold that merely because he is only earning meager salary as machine operator in Sharjah, he could not afford to buy such a costly car. The prayer for release on redemption is vehemently opposed by ld. SDR, who submits that para-8 of the adjudication order would make it clear as to why the car has been absolutely confiscated and he submits that it has been noticed that there have been lot of Hawala transactions and money laundering by persons using people like the importer to bring in vehicles in their name into India and then taking over the vehicle and using it.
3. We have carefully considered the rival submissions. In the absence of any stipulation in the Import Policy regarding financial condition of the importer, it is not for the adjudicating authority to question the financial wherewithal of the importer. The absolute confiscation is, therefore, not warranted in the present case and we, accordingly, set it aside. The order of absolute confiscation is converted into an order of confiscation with an option of redemption of the vehicle. The quantum of fine and penalty imposed should be re-determined by the adjudicating authority, within a period of 3 months from the receipt of this order and on extending a reasonable opportunity to the importer of being heard.
4. The appeal is thus allowed in the above terms.