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SYNOPSIS AND SYNOPSIS LIST OF DATES

The basic questions involved in the present Appeal is that the

car in question had imported after misdeclaring their description and

value and therefore they became liable to confiscation under Section

III(m), that Mr. Futehally was the pivotal figure in the import, false

transaction, payment from Osaka and sale in India, and that the NRI

importers had only assisted in this. Even in the present case the

cubic capacity of the engine of the said car had not even been

tested on behalf of the Department whereas the Tribunal erred in

passing in general an common order on the wrong presumption

without considering the appellants facts.

1984 to
Jan, 1988 The Appellant was employed in Singapore from

September 1984 to January 1988.

The Appellant was interested in importing an Audi 80

Car on his return to India. The Appellant learnt that one

M/s Ashiya Motors, Bombay were agents for Audi cars

in India.

Nov, 1987 The Appellant came to India on a short holiday in

November 1987, and he contacted Mr. Futehally, the

proprietor of M/s Ashiya Motors.


12.1.1988 The Appellant after discussing the matter with Mr.

Futehally, decided to import an Audi 80 car. The

Appellant, after his return to Singapore, remitted a sum

of DM 19,909/-directly to M/s Volkswagen, Germany, in

respect of which he received a receipt dated 12th

January 1988 from M/s Volkswagen, Germany.

The Appellant entrusted the work of Customs clearance

and other formalities to M/s Ashiya Motors, as he were

not conversant with the same, while M/s Ashiya Motors

were.

The Appellant came in contact with one Mr. Dilip Parikh,

a broker, who was liaisoning and coordinating all

matters between the Appellant and M/s Ashiya Motors.

The Appellant states that Mr. Dilip Parikh took the

signatures of the Appellant on blank forms for

application for the Customs Clearance Permit (CCP),

the Bill of Entry and other related documents.

4.7.1988 Mr. Dilip Parikh, a broker made arrangements with the

Customs House agent (CHA), who filled in the requisite

details in the Bill of Entry for home consumption.

In the meanwhile, the Appellant was offered a job in

India, and his employer offered a chauffeur driven car.


Consequently, the Appellant decided to dispose of the

Audi car.

On import of the said car, the Appellant paid customs

duty amounting to Rs 3,12 400/-by bank draft on the

CIF price of the car, and also paid Rs 28,000/-in cash to

Mr. Dilip Parikh towards payment of octroi and other

incidental charges.

The Appellant, as aforesaid, requested Mr. Dilip Parikh

to locate a prospective buyer. Mr. Dilip Parikh, after

making the necessary inquiries propose the name of a

company called M/s Hindustan Dorr-Oliver Ltd.

July, 1998 Subsequently the Appellant accepted the offer of M/s

Hindustan Dorr-Oliver Ltd., and sold the car to that

company for a total consideration of Rs 13,25,000/-all

inclusive. The delivery of the said car was made some

time in the last week of July, 1988.

The Appellant states that pursuant to an investigation

during which a statement of the Appellant was inter alia

recorded, a Show Cause Notice dated 21st January,

1991 was issued inter alia, to the Appellant, by the

Collector of Customs, Bombay, whereby the Appellant

along with Shri Sadiq Futehally, the proprietor of Ashiya


Motors, and others were called upon to show cause as

to why the car in question should not be confiscated

under the relevant provisions of the Customs Act, 1962.

why alleged differential customs duty should not be

demanded from them and why penal action should not

be taken against them under Section 112 of the Act, on

the allegations therein.

16.2.1993 The Appellant filed a written explanation by letter dated

16th February 1993 in reply to the said Show Cause

Notice.

12.5.1993 A personal hearing was granted to the Appellant where

after by an Order-in-Original dated 12th May 1993, the

collector, inter alia, purported to confirm a demand of

Customs duty amounting to Rs 2,42,169/- on the

Appellant, and to impose a penalty of Rs.1 lakh on the

Appellant, on the sole finding that the appellant was

guilty of misdeclaration of the correct cubic capacity of

the engine of the car.

1993 Aggrieved by the aforesaid Order-in-Original dated 12th

May 1993, the Appellant filed an appeal before the

Customs, Excise and Gold (Control) Appellate Tribunal,

(as it then was), being Appeal No.C/1817/93.


14.9.1993 The Appellant states that the Appellant also filed an

application for dispensation of pre-deposit and stay in

respect of the said amounts of duty and penalty

imposed upon the Appellant. By a common order dated

14th September, 1993, which disposed of several stay

applications, including, inter alia, the stay application

filed by the Appellant, the Appellant was directed to

deposit the entire amount of differential duty upon which

there would be waiver of pre- deposit of the said

penalty.

21.12.1993 As required by the Tribunal, The Appellant duly

deposited the duty amount of Rs 2,42,169/-on or about

21st December 1993.

2/3/4/21/22/
June 2004 The Appellant states that it appears that there were

several similar orders passed by different

Commissioners of Customs in respect of imports of

other Audi cars into India and that Appeals had been

filed by Ashiya Motors, challenging the said orders, as

also by other importers and purchasers of the said cars.

Further, it appears that the Department had preferred

cross appeals against the said orders passed by the

Commissioner. In the case of Appellant also the

Department had filed an appeal being Appeal


No.C/249/94A, whereby the Department prayed inter

alia, for the enhancement of the penalty imposed on the

Appellant. All the said Appeals were heard together by

the Tribunal on 2nd, 3rd and 4th June, 2004, and again on

21st and 22nd June, 2004.

21.6.2004 The Appellant’s case was taken up for hearing on 22 nd

June, 2004 when he was represented by Counsel and

submissions were made independently on behalf of the

Appellant, on the aspects as to whether differential duty

could at all have been demanded from the Appellant,

and whether penalty could have been imposed on the

Appellant. In particular, it was submitted that it could

never be alleged that the Appellant was guilty of

mideclaring the cubic capacity of the engine of the car,

more so when the cubic capacity of the said engine had

not even been tested on behalf of the Department in the

case of the particular car imported by the Appellant.

2.7.2004 However, by an order dated 2nd July, 2004, which was

passed in common in respect of all the appeals,

whether filed by Ashiya Motors, by various importers, by

various purchasers, and also the Department, the

Tribunal purported to dispose of all the said Appeals

without considering the individual pleas made on behalf


of the importers including the Appellant. The Tribunal

only made the following alleged findings vis-à-vis the

importers: -

“We have already found that the cars have been


imported after mis-declaring their description and
value. For this alone, they become liable to
confiscation under Section 111(m) and that Mr.
Futehally is the pivotal figure in the import, false
transaction, payment from Osaka and sale in
India. The NRI importers only assisted in this.”

“With regard to penalty on the importers, we have


already found that they were willing parties to
fraudulent import, with the sole aim of earning
commission from the deal. They were
consciously taking part in the violation of law.
Therefore, we find no reason to interfere with the
penalties imposed. We also do not find it
necessary to increase the penalties imposed on
them”.

Significantly, the Tribunal also held, in the context of

payment of differential duty as follows:

“Therefore, behold the differential duty amounts


arising from revaluation of the cars and the
computation of duty amounts would be the
liability of the owners of the cars who redeem
them after confiscation and not the liability of the
original importer.”

However, while passing the said order, the Tribunal

completely omitted to take note, or to pronounce a

finding upon the fact that in the Appellant’s case, the

collector had confirmed the demand of differential duty

upon the Appellant, and the Tribunal had, by the stay


order dated 14th September, 1993, directed the

Appellant to make pre-deposit of the said amount of

duty. The Tribunal ignored the Appellant’s plea for a

refund of the said differential duty.

Aggrieved by the said Order dated 2nd July, 2004

(Exhibit-H hereto) (hereinafter referred to as the

impugned order), to the extent that the same denies the

Appellant the refund of differential duty deposited by the

Appellant, and purports to uphold the penalty imposed

upon the Appellant by the Commissioner.

.09.2004 Hence this present Appeal.


IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2004

IN THE MATTER OF:

Mr. Atul H. Mehta


Prabha Kunj, 6, Andheri Co-Operative,
Housing Society, V. P. Road,
Andheri (West) Mumbai-400050 … Appellant

Versus

Commissioner of Customs
New Custom House,
Ballard-Estate, Bombay. … Respondent

PETITION OF APPEAL UNDER SECTION 130-E OF


CUSTOMS ACT., AGAINST THE COMMON
JUDGEMENT AND FINAL ORDER DATED 2.7.2004,
PASSED BY CEGAT, MUMBAI, IN APPEAL NO.
C/1817/93- [FINAL ORDER NO.687/2004-NB(A)]

TO

THE HON’BLE THE CHIEF JUSTICE OF INDIA AND


HIS COMPANION JUDGESS OF THE HON’BLE
SUPREME COURT OF INDIA.

THIS HUMBLE APPEAL OF THE APPELLANT


ABOVENAMED

MOST RESPECTFULLY SHEWETH:

1. That the Appellant above named respectfully submits the

Petition of Appeal under Section 130-E of Customs Act., against the

judgement and final order dated 2.7.2004, passed by CEGAT,

Mumbai in Appeal No. C/1817/93- [Final Order No.687/2004-NB(A)]


has been separately filed. The Tribunal by its impugned

Judgements disposed of the a bunch of Appeal filed by different

parties including the Appeal filed by the Appellant, without

considering individual pleas made on behalf of the Appellant. The

Tribunal also held that the car have been imported by the Appellant

after mis-declaring their description and value and therefore liable to

confiscation under Section 111(m).

It is further submitted that certified copy of the impugned order

dated 2nd July, 2004 was despatched by the Registry of the CESTAT,

Mumbai on 15th July, 2004 and the same was received by the

Appellant on 19th July, 2004.

2. QUESTION OF LAW

The instant Appeal raises the followings substantial question

of law of general public importance requiring and authoritative

pronouncement by this Hon’ble Court:-

(a) WHETHER the Tribunal erred in failing to consider the

particular facts arising in the Appellant’s case and in passing a

general common order on the aspect of penalties imposed

against several importers?

(b) WHETHER The Tribunal ought to have appreciated that it was

well settled that each import was an individual cause of action

and was required to be examined in the light of its own facts?

(c) WHETHER the Tribunal ought to have appreciated that it was

not permissible to the Tribunal to pass a rolled up and general


order without considering the individual facts arising in the

Appellant’s case?

(d) WHETHER the Tribunal ought to have appreciated that the

Appellant had been individually represented by Counsel, who

had addressed arguments on behalf of the Appellant on the

specific issues as to the refund of differential duty deposited

by the Appellant, as also the imposition of penalty on the

Appellant in the light of the facts, and legal issues arising in

the Appellant’s own case?

(e) WHETHER in particular, the Tribunal failed to appreciate that it

could never be alleged that the Appellant was guilty of

mideclaring the cubic capacity of the engine of the car, more

so when the cubic capacity of the said engine had not even

been tested on behalf of the Department in the case of the

particular car imported by the Appellant?

(f) WHETHER the Tribunal failed to appreciate that the Appellant

was a bona fide purchaser of the car from his own earnings,

and he had paid for the car?

(g) WHETHER the Tribunal ought to have appreciated that the

Appellant had himself paid for the duties and other charges?
(h) WHETHER the Tribunal failed to appreciate that thereafter, the

Appellant being desirous of selling the said car had the same

sold through Mr. Dilip Parikh, the broker,, in respect of which

he received payment from the purchaser of the said car, viz.,

one M/s Hindustan Dorr-Oliver Ltd.,?

(i) WHETHER the Tribunal ought to have appreciated that by

selling the car, the Appellant had committed no breach

whatsoever, of any law, as he was a Category-A importer in

terms of para 125 of Chapter IX of the relevant import policy?

(j) WHETHER the Tribunal failed to appreciate that in terms of

para 280 of the relevant Handbook of Procedure there was no

“No Sale” restriction on cars imported into India by Category-A

importer?

(k) WHETHER the Tribunal therefore, erred in making a sweeping

and general finding that cars had been imported after

misdeclaring their description and value, that they became

liable to confiscation under Section 111(m), that Mr. Futehally

was the pivotal figure in the import, false transaction, payment

from Osaka and sale in India, and that the NRI importers had

only assisted in this?

(l) WHETHER the Tribunal erred in making the further and

general and sweeping general finding that the importers were


willing parties to fraudulent import with the sole aim of earning

commission from the bill and that they were consciously taking

part in the violation of law?

(m) WHETHER the Tribunal ought to have appreciated that the

said findings were wholly ipse dixit and unsupported by any

evidence whatsoever in so far as the Appellant was

concerned. Indeed, they were contrary to both the legal and

factual position in so far as the Appellant was concerned?

(n) WHETHER the Tribunal ought to have appreciated that it was

evident from the particular facts of the Appellant’s case that

first, it was the Appellant’s own desire to sell the car, after the

same was cleared from Customs in India, having duly

complied with all the formalities of payment of duty,

registration etc. and second, that there was no illegality or

breach of any law if the Appellant chose to sell the car after its

clearance, in view of the very clear provisions of the relevant

Import Policy upon which the Appellants craves leave to rely?

3. That the Appellant states that no other petition of Appeal has

been filed by him earlier against the impugned Final Judgement and

order.

4. That briefly stated the facts of the case leading to the filing of

the instant appeal are as under:-


4.1 The Appellant was employed in Singapore from September,

1984 to January 1988. He was interested in importing an Audi

80 Car on his return to India. The Appellant learnt that one

Messrs Ashiya Motors, Bombay were agents for Audi cars in

India.

4.2 The Appellant came to India on a short holiday in November

1987, and he contacted Mr. Futehally, the proprietor of Messrs

Ashiya Motors.

4.3 The Appellant after discussing the matter with Mr. Futehally,

decided to import an Audi 80 car. The Appellant, after his

return to Singapore, remitted a sum of DM 19,909/-directly to

M/s Volkswagen, Germany, in respect of which he received a

receipt dated 12th January 1988 from M/s Volkswagen,

Germany.

4.4 The Appellant entrusted the work of Customs clearance and

other formalities to M/s Ashiya Motors, as he were not

conversant with the same, while M/s Ashiya Motors were.

4.5 The Appellant came in contact with one Mr. Dilip Parikh, a

broker, who was liaisoning and coordinating all matters

between the Appellant and M/s Ashiya Motors.


4.6 The Appellant states that Mr. Dilip Parikh took the signatures

of the Appellant on blank forms for application for the Customs

Clearance Permit (CCP), the Bill of Entry and other related

documents.

4.7 Mr. Dilip Parikh, a broker made arrangements with the

Customs House agent (CHA), who filled in the requisite details

in the Bill of Entry for home consumption. A copy of the

relevant Bill of Entry dated 4 th July, 1988 is annexed as

Annexure-P/1.

4.8 In the meanwhile, the Appellant was offered a job in India, and

his employer offered a chauffeur driven car. Consequently,

the Appellant decided to dispose of the Audi car.

4.9 On import of the said car, the Appellant paid customs duty

amounting to Rs 3,12 400/-by bank draft on the CIF price of

the car, and also paid Rs 28,000/-in cash to Mr. Dilip Parikh

towards payment of octroi and other incidental charges.

4.10 The Appellant, as aforesaid, requested Mr. Dilip Parikh to

locate a prospective buyer. Mr. Dilip Parikh, after making the

necessary inquiries propose the name of a company called

M/s Hindustan Dorr-Oliver Ltd.

4.11 Subsequently the Appellant accepted the offer of M/s

Hindustan Dorr-Oliver Ltd., and sold the car to that company


for a total consideration of Rs 13,25,000/-all inclusive. The

delivery of the said car was made some time in the last week

of July, 1988.

4.12 The Appellant states that pursuant to an investigation during

which a statement of the Appellant was inter alia recorded, a

Show Cause Notice dated 21st January, 1991 was issued inter

alia, to the Appellant, by the Collector of Customs, Bombay,

whereby the Appellant along with Shri Sadiq Futehally, the

proprietor of Ashiya Motors, and others were called upon to

show cause as to why the car in question should not be

confiscated under the relevant provisions of the Customs Act,

1962. why alleged differential customs duty should not be

demanded from them and why penal action should not be

taken against them under Section 112 of the Act, on the

allegations therein. A true copy of the said Show Cause

Notice dated 21st January, 1991 is annexed hereto and

marked Annexure-P/2.

4.13 The Appellant filed a written explanation by letter dated 16th

February 1993 in reply to the said Show Cause Notice. A copy

whereof is annexed hereto as Annexure-P/3

4.14 A personal hearing was granted to the Appellant where after

by an Order-in-Original dated 12th May 1993, the collector,

inter alia, purported to confirm a demand of Customs duty


amounting to Rs 2,42,169/- on the Appellant, and to impose a

penalty of Rs.1 lakh on the Appellant, on the sole finding that

the appellant was guilty of misdeclaration of the correct cubic

capacity of the engine of the car. A copy of the said Order-in-

Original dated 12th May 1993 is annexed hereto and marked

Annexure-P/4.

4.15 Aggrieved by the aforesaid Order-in-Original dated 12 th May

1993, the Appellant filed an appeal before the Customs,

Excise and Gold (Control) Appellate Tribunal, (as it then was),

being Appeal No.C/1817/93.

4.16 The Appellant states that the Appellant also filed an

application for dispensation of pre-deposit and stay in respect

of the said amounts of duty and penalty imposed upon the

Appellant. By a common order dated 14 th September, 1993,

which disposed of several stay applications, including, inter

alia, the stay application filed by the Appellant, the Appellant

was directed to deposit the entire amount of differential duty

upon which there would be waiver of pre- deposit of the said

penalty. A copy of the said order dated 14 th September, 1993

is annexed as AnnexureP/5.

4.17 As required by the Tribunal, The Appellant duly deposited the

duty amount of Rs 2,42,169/-on or about 21st December 1993.

A copy of the Appellant’s letter dated 21 st December 1993,


together with the receipt for the said deposit of duty is

annexed as Annexure-P/6.

4.18 The Appellant states that it appears that there were several

similar orders passed by different Commissioners of Customs

in respect of imports of other Audi cars into India and that

Appeals had been filed by Ashiya Motors, challenging the said

orders, as also by other importers and purchasers of the said

cars. Further, it appears that the Department had preferred

cross appeals against the said orders passed by the

Commissioner. In the case of Appellant also the Department

had filed an appeal being Appeal No.C/249/94A, whereby the

Department prayed inter alia, for the enhancement of the

penalty imposed on the Appellant. All the said Appeals were

heard together by the Tribunal on 2nd, 3rd and 4th June, 2004,

and again on 21st and 22nd June, 2004.

4.19 The Appellant’s case was taken up for hearing on 22 nd June,

2004 when he was represented by Counsel and submissions

were made independently on behalf of the Appellant, on the

aspects as to whether differential duty could at all have been

demanded from the Appellant, and whether penalty could

have been imposed on the Appellant. In particular, it was

submitted that it could never be alleged that the Appellant was

guilty of mideclaring the cubic capacity of the engine of the


car, more so when the cubic capacity of the said engine had

not even been tested on behalf of the Department in the case

of the particular car imported by the Appellant.

4.20 However, by an order dated 2nd July, 2004, which was passed

in common in respect of all the appeals, whether filed by

Ashiya Motors, by various importers, by various purchasers,

and also the Department, the Tribunal purported to dispose of

all the said Appeals without considering the individual pleas

made on behalf of the importers including the Appellant. The

Tribunal only made the following alleged findings vis-à-vis the

importers: -

“We have already found that the cars have been


imported after mis-declaring their description and value.
For this alone, they become liable to confiscation under
Section 111(m) and that Mr. Futehally is the pivotal
figure in the import, false transaction, payment from
Osaka and sale in India. The NRI importers only
assisted in this.”

“With regard to penalty on the importers, we have


already found that they were willing parties to fraudulent
import, with the sole aim of earning commission from
the deal. They were consciously taking part in the
violation of law. Therefore, we find no reason to
interfere with the penalties imposed. We also do not
find it necessary to increase the penalties imposed on
them”.

Significantly, the Tribunal also held, in the context of payment

of differential duty as follows:

“Therefore, behold the differential duty amounts arising


from revaluation of the cars and the computation of duty
amounts would be the liability of the owners of the cars
who redeem them after confiscation and not the liability
of the original importer.”

However, while passing the said order, the Tribunal completely

omitted to take note, or to pronounce a finding upon the fact

that in the Appellant’s case, the collector had confirmed the

demand of differential duty upon the Appellant, and the

Tribunal had, by the stay order dated 14 th September, 1993,

directed the Appellant to make pre-deposit of the said amount

of duty. The Tribunal ignored the Appellant’s plea for a refund

of the said differential duty.

Aggrieved by the said Order dated 2 nd July, 2004 (Exhibit-H

hereto) (hereinafter referred to as the impugned order), to the

extent that the same denies the Appellant the refund of

differential duty deposited by the Appellant, and purports to

uphold the penalty imposed upon the Appellant by the

Commissioner.

5. That the impugned final order dated 2.7.2004 is liable to be

set aside/quashed entirely on the following:-

GROUNDS

(A) BECAUSE the impugned order is contrary to law and to the

facts of the case insofar as it denies the Appellant the refund

of differential duty deposited by the Appellant, and purports to


uphold the penalty imposed on the Appellant by the

Commissioner.

(B) BECAUSE the Tribunal ought to have appreciated that it was

well settled that each import was an individual cause of action

and was required to be examined in the light of its own facts.

(C) BECAUSE the Tribunal ought to have appreciated that it was

not permissible to the Tribunal to pass a rolled up and general

order without considering the individual facts arising in the

Appellant’s case.

(D) BECAUSE the Tribunal ought to have appreciated that the

Appellant had been individually represented by Counsel, who

had addressed arguments on behalf of the Appellant on the

specific issues as to the refund of differential duty deposited

by the Appellant, as also the imposition of penalty on the

Appellant in the light of the facts, and legal issues arising in

the Appellant’s own case.

(E) BECAUSE in particular, the Tribunal failed to appreciate that it

could never be alleged that the Appellant was guilty of

mideclaring the cubic capacity of the engine of the car, more

so when the cubic capacity of the said engine had not even

been tested on behalf of the Department in the case of the

particular car imported by the Appellant.


(F) BECAUSE the Tribunal failed to appreciate that the Appellant

was a bona fide purchaser of the car from his own earnings,

and he had paid for the car.

(G) BECAUSE the Tribunal ought to have appreciated that the

Appellant had himself paid for the duties and other charges.

(H) BECAUSE the Tribunal failed to appreciate that thereafter, the

Appellant being desirous of selling the said car had the same

sold through Mr. Dilip Parikh, the broker, in respect of which

he received payment from the purchaser of the said car, viz.,

one Messrs Hindustan Dorr-Oliver Ltd.

(I) BECAUSE the Tribunal ought to have appreciated that by

selling the car, the Appellant had committed no breach

whatsoever, of any law, as he was a Category-A importer in

terms of para 125 of Chapter IX of the relevant import policy

(J) BECAUSE the Tribunal failed to appreciate that in terms of

para 280 of the relevant Handbook of Procedure there was no

“No Sale” restriction on cars imported into India by Category-A

importer.

(K) BECAUSE the Tribunal therefore, erred in making a sweeping

and general finding that cars had been imported after

misdeclaring their description and value, that they became


liable to confiscation under Section 111(m), that Mr. Futehally

was the pivotal figure in the import, false transaction, payment

from Osaka and sale in India, and that the NRI importers had

only assisted in this.

(L) BECAUSE the Tribunal erred in making the further and

general and sweeping general finding that the importers were

willing parties to fraudulent import with the sole aim of earning

commission from the bill and that they were consciously taking

part in the violation of law.

(M) BECAUSE the Tribunal ought to have appreciated that the

said findings were wholly ipse dixit and unsupported by any

evidence whatsoever in so far as the Appellant was

concerned. Indeed, they were contrary to both the legal and

factual position in so far as the Appellant was concerned.

(N) BECAUSE the Tribunal ought to have appreciated that it was

evident from the particular facts of the Appellant’s case that

first, it was the Appellant’s own desire to sell the car, after the

same was cleared from Customs in India, having duly

complied with all the formalities of payment of duty,

registration etc. and second, that there was no illegality or

breach of any law if the Appellant chose to sell the car after its

clearance, in view of the very clear provisions of the relevant

Import Policy upon which the Appellants craves leave to rely.


(O) BECAUSE the Tribunal ought to have appreciated that all the

relevant facts, including the fact that the Appellant was

desirous of selling his car after clearance had been clearly set

out in the statement (Exhibit “B” hereto), which had been

recorded by the Customs authorities themselves.

(P) BECAUSE the Tribunal ought to have appreciated that it ought

not to have disregarded the facts as set out in the said

statement, as the said statement tantamounted to testimony

on oath.

(Q) BECAUSE the Tribunal ought to have appreciated that the

above testimony established that this was done bona fide,

without any knowledge or intention of taking part in any

violation of law.

(R) BECAUSE the Tribunal ought to have appreciated that there

was no violation of law by the Appellant whatsoever, in the

light of provisions of para 280 of the relevant Handbook of

Procedure as aforesaid.

(S) BECAUSE the Tribunal ought to have appreciated that in any

case, the basis for imposition of penalty on the Appellant,

unlike in the case of other importers, was that the Appellant

had misdeclared the correct cubic capacity of the engine of

the car.
(T) BECAUSE the Tribunal ought to have appreciated that it was

therefore required to pronounce a specific finding on this

aspect of the matter.

(U) BECAUSE the Tribunal failed to appreciate that in the present

case, unlike in the case of other importers, the Department

had not even caused the cubic capacity of the engine of the

car imported by the Appellant to be tested.

(V) BECAUSE in the premises, it was incumbent upon the

Tribunal to have set aside the penalty imposed upon the

Appellant as being without any basis.

(W) BECAUSE in the premises, it is submitted that the Tribunal

ought to have held that no penalty whatsoever was imposable

against the Appellant, and to have exonerated the Appellant.

(X) BECAUSE the Tribunal further erred in completely ignoring

and in not pronouncing any findings whatsoever upon the

Appellants plea for refund of the alleged differential duty of

Rs.2,42,169/-deposited by the Appellant pursuant to the

Tribunal’s stay order dated 14th September, 1993.

(Y) BECAUSE the Tribunal ought to have appreciated that this

was contrary to its own finding in the impugned order, as set

out in Para 16 above, wherein the Tribunal had categorically


held that the liability to pay differential duty would rest with the

owners of the cars and not the importers.

(Z) BECAUSE in the premises, the Tribunal ought to have held

that the said amount of duty was refundable to the Appellant.

(AA) BECAUSE the Tribunal erred in failing to consider the

particular facts arising in the Appellant’s case and in passing a

general common order on the aspect of penalties imposed

against several importers.

VALUATION REPORT:

The really contentious issue in this proceeding is what should

be the assessable value of the cars. The Tribunal hold that re-

valuation of the cars should be done on the Tourist Prices List and

differential duty computed accordingly and payment model the basic

tourist price for the model in question plus the cost of additional

features should form the FOB value of a car.

The revenue involved in this case is around 7,03,879/- and

accordingly a Court fees of Rs.2050/- payable.

PRAYERS

It is therefore most respectfully prayed that this Hon’ble Court

may be graciously pleased to:


a) admit and allow this appeal and set Aside the impugned

judgement and final order dated 2.7.2004, passed by CESTAT

Mumbai passed in Appeal No.C/1817/93- [Final Order

No.687/2004-NB(A)].

b) Pass such other, further and/or consequential orders as this

Hon’ble Court may deem fit and proper in the facts and

circumstances of the case and/or are considered expedient in

the interest of Justice.

DRAWN BY : FILED BY:

Uday Kumar (R. NEDUMARAN)


Advocate ADVOCATE FOR THE APPELLANT

DRAWN ON:11.9.04
FILED ON: 16.9.04
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2004

IN THE MATTER OF:

Mr. Atul H. Mehta. … Appellant

Versus

Commissioner of Customs
Bombay. … Respondent

CERTIFICATE

Certified that the Civil Appeal is confined only to the pleadings


before the Court whose order is challenged and the documents
relied upon in those proceedings. No additional fact, documents, or
grounds have been taken or are relied upon in this Civil Appeal
except for those Additional facts, documents and grounds for which
an application seeking permission to file the same has been filed
before this Hon’ble Court. It is, further certified that the copies of
the documents (Annexures attached herewith) are necessary to
answer the question of law raised in the C.A. and to make out
grounds urged in the C.A. This Certificate is given on the basis of
the instructions given by the person authorised by the Petitioners
whose affidavit is filed in support of the Civil Appeal.

FILED BY:

(R. NEDUMARAN)
ADVOCATE FOR THE APPELLANT
Dated: /9/2004
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

I.A.NO. OF 2004

IN

CIVIL APPEAL NO. OF 2004

IN THE MATTER OF:

Mr. Atul H. Mehta. … Appellant

Versus

Commissioner of Customs
Bombay. … Respondent

AN APPLICATION FOR AD INTERIM EX-PARTE


STAY.

TO

THE HON’BLE THE CHIEF JUSTICE OF INDIA AND


HIS COMPANION JUDUCES OF THE HON’BLE
SUPREME COURT OF INDIA.

THIS HUMBLE APPEAL OF THE APPELLANT


ABOVENAMED

MOST RESPECTFULLY SHEWETH:

1. That the Appellant above named respectfully submits the

Petition of Appeal under Section 130-E of Customs Act., against the

judgement and final order dated 2.7.2004, passed by CEGAT,

Mumbai in final order in Appeal No.C/1817/93 [Final Order


No.687/2004-NB(A)]. The Tribunal by its impugned Judgements

disposed of the a bunch of Appeal filed by different parties including

the Appeal filed by the Appellant, without considering individual

pleas made on behalf of the Appellant. The Tribunal also held that

the car have been imported by the Appellant after mis-declaring

their description and value and therefore liable to confiscation under

Section 111(m).

2. The facts leading upto filing the present Application has

already been set out in the accompanying Civil Appeal and the same

are not being repeated for the sake of brevity and to avoid

unnecessary repetition.

3. That the Appellant/applicant has a prime facie goods case and

is likely to succeed on merits as a result of its appeal.

4. That balance of convenience is in favour of the appellant and

against the respondent.

5. That the present application has been made bonafide.

PRAYER

It is therefore most respectfully prayed that this Hon’ble Court

may be graciously pleased to:

a) grant an ex-parte ad-interim stay of the operation and effect of

the operation of the final judgement and order dated


2.7.2004, passed by CESTAT Mumbai passed in final order in

Appeal No.C/1817/93 [Final Order No.687/2004-NB(A)].

b) Pass such other, further and/or consequential orders as this

Hon’ble Court may deem fit and proper in the facts and

circumstances of the case and/or are considered expedient in

the interest of Justice.

DRAWN BY : FILED BY:

Uday Kumar (R. NEDUMARAN)


Advocate ADVOCATE FOR THE APPELLANT

DRAWN ON: 11.09.2004


FILED ON: 16.09.2004
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2004


[From the Impugned Judgement and final order Order dated
2.7.2004, passed by CEGAT, Mumbai, in Appeal No.C/1817/93 [Final
Order No.687/2004-NB(A)]

IN THE MATTER OF:

Mr. Atul H. Mehta. … Appellant

Versus

Commissioner of Customs
Bombay. … Respondent

WITH

I.A.NO. OF 2004
[An Application for ex-parte Stay]

PAPER BOOK

[FOR INDEX:: KINDLY SEE INSIDE]

ADVOCATE FOR THE APPELLANT:: [R. NEDUMARAN]


INDEX

S. PARTICUALRS PAGE
NO. NOS.

1. Office Report of Limitation A

2. List of Dates & Synopsis B–J

3. True Copy of the Impugned the Judgement and Final


Order dated 2.7.2004, passed by CEGAT, Mumbai, in 1 – 35
Appeal No.C/1817/93 [Final Order No.687/2004-NB(A)]

4. Civil Appeal with Affidavit. 36 - 56A

5. ANNEXURE-P/1. 57 – 57A
True copy of the relevant Bill of Entry dated 4 th July,
1988.

6. ANNEXURE-P/2. 58 – 128
True copy of the said Show Cause Notice dated 21 st
January, 1991.

7. ANNEXURE-P/3 129 – 165


True copy Show Cause Notice dated 16th February, 1993.

8. ANNEXURE-P/4 166 – 245


A copy of the said Order-in-Original dated 12 th May
1993 passed by Office of Collector of Customs,
Bombay

9. ANNEXURE-P/5 246 – 254


True copy of the said order dated 14 th September, 1993
passed by the CEGAT, Regional Bench, Bombay

10. ANNEXURE-P/6 255 – 260


A copy of the Appellant’s letter dated 21 st December
1993, together with the receipt for the said deposit of
duty.

11. An Application for ad-interim ex-parte Stay with Affidavit. 261 – 265

12 Affidavit of valuation. 266 – 267


A
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2004

IN THE MATTER OF:

Mr. Atul H. Mehta. … Appellant

Versus

Commissioner of Customs
Bombay. … Respondent

OFFICE REPORT ON LIMITATION

The aforesaid Civil Appeal


is well within time.

NEW DELHI
September 16, 2004

SECTION OFFICER

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