Decided on February 13,1991



T.P. Nambiar, Member (J) - (1.) THIS is an appeal filed by the appellant against the above-noted order dated 12-7-1990 passed by the Additional Collector of Customs, Air Cargo Complex (Import). The brief facts of the case are that the appellant is an Indian National settled in U.K. since 1968 and hold Indian Passport No. W430964 dated 4-1-1985. As she intended to transfer her residence from London to India, she decided to import a new BMW car under transfer of residence rule as per Import Policy 1988-91. After purchasing one new BMW car the appellant made an application for CCP in form as per guideline given by the Indian Embassy at London. On 23-11-1989, she deposited in the office of Indian Embassy, London � 18.52 (equivalent to Rs. 500/-) as prescribed fee for CCP application for import of a car. Further she made an affidavit as per guideline given in the Import Policy 1988-91 before the Attachee (Consulate) High Commission of India, London on 23-11-1989. On 30-5-1990, the appellant booked her car to Calcutta by air freight through Jordan Airlines vide Airway Bill No. 512-1923-2920. The appellant arrived in India on 6th June, 1990 for permanent settlement after transferring her residence. She filed a Bill of Entry No. 974 dated 19-6-1990 through her representative for clearance of her car. Thereafter the Assistant Collector of Customs examined the car and found it as per description given in the Bill of Entry. As the appellant did not receive the CCP till 21-6-1990, which was required for clearance of the said car, she, vide letter dated 21-6-1990 requested the Assistant Collector of Customs to release the car after waiving the formalities of CCP, show cause notice, and personal hearing and further stated that if necessary she was ready to pay a token fine for the same. The letter dated 21-6-1990 is annexed to the appeal memorandum. The adjudication took place and the learned Additional Collector of Customs, Aircargo Complex (Import) confiscated the car under Section 111(d), but allowed the appellant to redeem the same on payment of a "token" fine of Rs. 10 lakhs. He also imposed a "token" personal penalty of Rs. 5 lakhs on the appellant for unauthorised and illegal import of a brand new car. Being aggrieved by this order, the appellant has come up in appeal before this Tribunal with a prayer that the order of the Additional Collector may be set aside, the car may be released on a token fine or in the alternative allowed to be re-exported, and grant consequential reliefs to the appellant.
(2.) The learned Consultant Shri A. Sunderrajan appearing for the appellant contended before us that the Policy of 1988-91, as originally stood, permitted the import of the car and the CCP would be issued to those who have stayed in England for a period of one year and had purchased a car. He further contended that in the meanwhile the Policy was further amended and the new Policy came into force with effect from 1-4-1990. As per this new Policy, the car in question could be imported only if the appellant had stayed in England for a period of two years and the said car was in use for a period of one year. Shri Sunderrajan contended that before coming into force of this Policy w.e.f. 1-4-1990, the appellant had already purchased the car and had made arrangements to import the car into India, as she wanted to settle down in India permanently. In such circumstances, the learned Counsel contended that the action of the appellant was bona fide and there are no mala fides on her part. It was also contended before us that the value of the car is only Rs. 14 lakhs and in this connection he relied on an Article published in "Foreign Buys" under headlines "The Foreign Option", a xerox copy of which has been filed before us. It was, therefore, contended that the imposition of penalty of Rs. 5 lakhs and redemption fine of Rs. 10 lakhs is out of proportion. He also relied on a decision of the Supreme Court reported in 1990 (47) ELT 161 (SC) - 1990 (28) ECR 145 (SC) in the case of Akbar Badrudin Jiwani of Bombay v. Collector of Customs, Bombay. It was also contended by the learned Counsel that the adjudicating officer himself has come to the conclusion that only a token fine and penalty is needed in this case. In this connection, he drew our attention to the relevant portions of the order in the adjudication proceedings. Shri Sunderrajan therefore, contended that token penalty means a nominal penalty and instead of imposing a nominal penalty the imposition of huge penalty of Rs. 5 lakhs and redemption fine of Rs. 10 lakhs is not justified on the facts and circumstances of this case. It was further contended before us that the appellant who wanted to settle in India cannot be penalised to this huge extent when there are no mala fides on her part. Accordingly, he contended that in view of the above cited Supreme Court decision, the appeal may be allowed.
(3.) SHRI M.N. Biswas, the learned SDR appearing on behalf of the respondents contended before us that as per the new Policy which came into force w.e.f. 1-4-1990, two conditions are to be fulfilled by the, appellant. The first condition is that the appellant should have stayed in England for two years and the second condition is that the car in question should have been in use at least for a period of one year in England. He also contended that the car was not in use in England for this period of one year. SHRI Biswas contended that the appellant also could not get the CCP with respect to this car by applying to the Joint Chief Controller of Imports & Exports. SHRI Biswas pointed out that the new Policy had come into effect w.e.f. 1-4-1990. It was also contended that this Policy was announced in the Gazette of India and it is deemed to have been within the knowledge of the appellant. In this connection, SHRI Biswas contended that the appellant booked the car from U.K. to India on 30-5-1990 and the car came to Calcutta by air freight through Jordan Airlines. It was, therefore, contended that even after the publication of the new Policy, the appellant had booked the car on 30-5-1990 and/therefore, the act of the appellant could not be said to be bonafide. He also disputed that this car is valued only about Rs. 14 lakhs, as per the documents produced by the appellant's Counsel. SHRI Biswas contended that no reliance can be placed on the above said Article. He also argued that the decision relied on by the learned Counsel for the appellant is not applicable to the facts of this case and he distinguished the same. He also relied on a decision of the Supreme Court reported in AIR 1977 SC 2279 in the case of Ajit Mills. He also relied on another decision of the Bombay High Court reported in 1982 (10) ELT 135. Relying on the abovesaid decision he contended that if the provisions of the Import (Control) Order or Act are contravened, the imposition of penalty and fine are justified. It was also contended that the violation made by the appellant is not technical or venial one and, therefore, he justified the orders passed by the lower authorities.;

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