N.K. Bajpai, Member (T)
1. This is an appeal against the order absolutely confiscating a Mercedes Benz Car under Sections 111(d) and 111(o) of the Customs Act, 1962 and imposing a penalty of Rs. 15,000/- on the appellant under Section 112 ibid. The order of confiscation has been passed on the ground that the car which was imported by one Mr. Herbert Fischer through the Attary Land Customs Check Post in April 1979 against Carnet-de-passage, was not re-exported out of India as required in terms of the Carnet and was found with the appellant. The Registration Book for Car DHE 9898 produced by the appellant at the time of search on 18-2-1980 was not found to pertain to the Car in question because the Engine Number, Chassis Number and number of cylinders mentioned in the Registration Book did not tally with those of the Car. Moreover, some over-writings were found in the Registration Book regarding the year of manufacture without any attestation from the Transport Authority.
2. The main ground taken by the appellant before the Additional Collector of Customs as well as before us is that he had got the Engine Block and certain other parts of the Car replaced because of two accidents and it is for this reason that the Engine Number and the Chassis Number do not tally with those given in the Registration Book; that although the Car is of four cylinders, a mistake appears to have been made in the Registration Book in describing it as of six cylinders; that the value of the Car has been taken on the higher side; that the Carnet describes the Car as 1971 model Limousine, whereas it is actually a 1968 model Sedan. It is also the claim of the appellant that since the adjudicating authority has come to the conclusion in paragraph-23 of his order that cannibalization had taken place in the Car, his plea that the original engine has been replaced, should have been accepted and the Registration Book produced by him taken as valid for the Car.
3. Arguing for the appellant, Shri Harbans Singh, the learned Counsel submitted extracts from the 'Shorter Oxford English Dictionary (Illustrated)' to explain the meaning of Limousine and Sedan, which are as under :-
Limousine (Fr.): A motor car with a closed body and a roofed place for the driver.
Sedan : A motor car having a single compartment for four or more persons including the driver (US).
4. The learned Counsel submitted that the Additional Collector has not dealt with the plea that the Car in question was a Sedan, whereas in the Carnet, it was described as a Limousine. This itself was enough to prove that the Car seized from the appellant was not the same as the one imported against the Carnet by Mr. Herbert Fischer. He also invited attention to the endorsement of the appellant in the Panchnama where he had stated as under :-
"The Engine Number and Chassis Number mentioned in the Panchnama are subject to verification since the engine and other parts have been replaced by me".
He also submitted that the appellant had applied for registration of the Car on 21-2-1978, whereas, according to the Carnet, the Car was imported in April 1979. This itself would disprove the allegation, and any discrepancy found in the Registration Book could not be held against the appellant. He also submitted that since the allegation is that the Car had been imported against a Carnet, the provisions of Section 111(d) of the Customs Act would not apply. He also contested the applicability of Section 111(e) which was not even alleged in the show cause notice. The allegation was that the provisions of Section 111(o) had been contravened but no order has been passed under that provision.
5. Shri G. Bhusan, the learned SDR submitted that the particulars of Engine Number, Chassis Number and number of cylinders given in the Registration Book did not tally with those actually found in the Car seized from the appellant. This itself would show that the Registration Book produced by the appellant did not relate to the Car in question. Moreover, the authorities had even looked into the previous Registration Book for DLI 4860 which was replaced by DHE 9898 and, apart from noticing important discrepancies, had also found over-writing about the year of manufacture of the Car. Since the adjudicating authority had accepted the appellant's plea about replacement of certain parts, it is possible that other things were also changed in the Car. In any case, there are number of discrepancies in the Registration Book which had been warranted non-acceptance of the Car in question. As for the legal point raised by the learned Counsel, Shri Bhusan, the learned SDR submitted that even if the order of confiscation under Section 111(e) is not held valid, the order of confiscation under Section 111(d) is sustainable. The learned SDR also referred to the decision of the Tribunal in the case of Dinesh T. Shah v. Collector of Customs [1991 (55) E.L.T. 547] in paragraph-7 of which, it was held that a motor-vehicle is identified only on its Chassis Number and since the appellants have not taken the plea that the Chassis was changed, the acceptance of the other plea about the replacement of the Engine Block could not make any difference. Since the appellant was not the lawful owner of the Car, the question of releasing it to him did not arise.
6. Replying, Shri Harbans Singh submitted that the discrepancy between four cylinders and six cylinders in the Registration Book was a mistake. As for the decision of the Tribunal cited by the learned SDR, he stated that that was a case of fake Registration Book and the ratio could not be applied in this case. The burden of proof was on the Department and it had to be discharged before the order of confiscation is passed.
7. We have carefully considered the appeal and the submissions made at the hearings. Every Car is required to be registered under the Motor Vehicles Act and the particulars of the Car are not only required to be mentioned in the form of application for registration of Motor vehicle but are also incorporated in the Certificate of Registration, which is usually known as the Registration Book. It appears from the First Schedule (Form-G) to the Motor Vehicles Act, 1939, which was the Act applicable at the material time, that a detailed description of the vehicle is prescribed and it is useful to reproduce it here for our purposes :-
1. Class of vehicle ...
(1A. The motor vehicle is-
(a) a new vehicle;
(b) a re-built vehicle)
2. Maker's name...
3. Type of body...
4. Year of manufacture...
5. Number of cylinders...
6. Chassis number...
7. Engine number...
(7A. Fuel used in the engine...)
8. Horse Power...
(8A. Cubic capacity...)
9. Maker's classification or, if not known, wheel-base.....
10. Seating capacity (including driver)...
11. Unladen weight...
Additional particulars in the case of all transport vehicles other than motor cabs-
(Additional particulars in the case of all transport vehicles other than motor cars.
11A. Colour or colours of body, wings and front end...)
(12. Maximum laden weight--
(a) as certified by the manufacturer...Kgms.
(b) as registered...Kgms.)
13. Number, description and size of tyres--
(a) front axle...
(b) rear axle...
(c) any other axle...
14. Registered axle weight [in the case of (heavy goods vehicles or heavy passenger motor vehicle) only]-
(a) front axle...(Kgms.)
(b) rear axle...(Kgms.)
(c) any other axle...(Kgms.)"
All these particulars also appear in the Registration Book placed on record except the amendment made in 1978 in Clause 1A.
8. By an amendment of 1978 made in Clause 1A of the detailed description, it became necessary to indicate whether the motor vehicle was a new vehicle or a re-built vehicle. The Registration Book, which the appellants produced, is indicated as a duplicate Registration Book, which was initially meant for DLI 4860 and subsequently assigned to DHE 9898. If the appellant's case is that between 1978 when he registered the Car with the Motor Vehicle Authorities and 1980 when it was seized by the Customs Authorities, they had replaced the engine resulting in change of the Engine Number, was it not obligatory on their part to have approached the Registering Authorities for correcting the Registration Book? In the absence of such an action to corroborate their plea, the Registration Book - in which three important particulars do not tally, namely -Engine Number, Chassis Number and number of cylinders - has been correctly rejected by the Addl. Collector. As for the type of body, the question being one of fact, was it not proper for the appellant to have asked for the examination of the Car to record a finding of fact that it was a Sedan and not a Limousine? In the absence of any enquiry, we have to go by the record and there is nothing in the Panchnama to support the contention of the appellant. Even, otherwise, the Shorter Oxford English Dictionary to which reference has been made by the appellant does not make such a clear distinction between the two types of bodies so as to lend credence to the point of view canvassed by the appellant.
9. We next consider the question of burden of proof. While it is true that ordinarily the burden of proof for the goods which are not notified under Section 123 of the Customs Act is on the Department, in the facts of the present case, it cannot be denied that in view of the evidence cited by the Department of the import of the Car under the Carnet, the burden has shifted on to the appellant. The fact that a Car bearing the same Engine Number and Chassis Number as shown on the Carnet has been found with the appellant, the fact that the Car which was imported against a Carnet and had not been exported out of India, has the effect of shifting the burden on the appellant. In these circumstances, it was for the appellant to explain how he came to possess this Car. The Registration Book produced by him and the plea taken by him that he had purchased the Car from one Shri Surjeet Singh in 1978 have not been of any help to him. The appellant did not, even, furnish the address of Shri Surjeet Singh so that the authorities could locate him. One cannot also accept the appellant's plea that at the time of purchasing the Car, he did not check the Engine Number and Chassis Number of the Car to verify whether this is the same Car as shown in the Registration Book. Further, in view of the over-writing in the Registration Book, the authenticity of the entries in it also raise doubts.
10. We agree with the learned Counsel that the order invoking the provisions of Section 111(e) is bad but so is not the case with the order under Section 111(d) as is clear from the examination of the matter in the following paragraphs. The import of motor vehicles is allowed without an Import Licence under Savings Clause 11(1) (m) of the Imports (Control) Order No. 17/55, dated 7th December 1955. Such vehicles are exempt from duty in terms of Notification 296-Cus., dated 2-8-1976 under the Customs Convention on the Temporary Importation of private road vehicles on the condition that the period of retention of the vehicle in India does not exceed six months or such further period as may be extended by the Central Government. So far as Savings Clause 11(1)(m) is concerned, it is as under :-
"11. Savings. - (1) Nothing in this Order shall apply to the import of any goods :-
(m) being vehicles as defined in Article I of the Customs Convention on the Temporary Importation of Private Road Vehicles or the component parts thereof referred to in Article 4 of the said convention and are exempt from payment of customs duty under the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 296, dated the 2nd August 1976 as subsequently amended, by Notification No. 53-Cus., dated the 1st May, 1977, provided that-
(i) such vehicles or component parts are re-exported within the period specified in the said notification or within such further period as the customs authorities may allow;
(ii) the provisions of the said notification or of the 'Triptyque or Carnet-De-Passage' permit are not contravened in relation to such vehicles or component parts;
failing which the provisions of this Order shall apply to such vehicles or component parts and such vehicles or components shall be deemed to be goods the import of which has been prohibited under the Customs Act, 1962 (52 of 1962) :"
11. It will appear from the above provisions that if a vehicle which is imported under a Carnet-De-Passage and is not re-exported within the period specified, or if the provisions of Notification 296-Cus, dated 2nd August 1976 or of the Carnet are contravened, the vehicle shall be deemed to be goods the import of which have been prohibited under Customs Act, 1962. It is not necessary for us to say that Section 111(d) of the Customs Act is applicable to goods which are imported contrary to any prohibition imposed under the Customs Act or any other law for the time being in force. Thus, the order of confiscation under Section 111(d) was fully within the four corners of the law. The impugned order does not, therefore, suffer from any infirmity. Having considered all the contentions raised by the learned Counsel before us, we find that the appeal is devoid of any merit and it is rejected.
12. So far as the order imposing penalty is concerned, there is enough evidence that the appellant had not only retained the vehicle beyond the prescribed period, but had also failed to produce evidence in support of his bona fide purchase of the vehicle and its registration. In these circumstances, even if the value of the Car is accepted to be Rs. 52,000/- for which the appellant claims to have purchased it, it cannot be said that the imposition of penalty of Rs. 15,000/- was excessive or out of proportion. Thus, without going into the question of valuation of the Car we consider that this is a fit case for imposition of penalty of Rs. 15,000/- and reject the appeal on this count too.