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.