Per Shri S. Kalyanam :

This appeal is directed against the order of Collector of Customs, Madras, dated 27.8.92 absolutely confiscating the imported car, namely Honda Accord Model 1990 under Bill of Entry no. 4092 dated 6.2.92 on grounds of mis-declaration of value and description u/s 111 (d) & 111 (m) of the Customs Act, 1962, the 'Act' for short, besides a penalty of Rs. 2.25 lakhs u/s 112 (a) of the Act, has been levied on the appellant.

2. The appellant herein imported Honda Accord car aforesaid and sought clearance of the same under OGL in terms of ITC public notice 197/91 dated 16.8.91. As per the above Public Notice, import of cars with engine sizes above 1400 cc is permissible subject to the condition that the vehicle should have been in the use of the importer abroad for at least a period of one year prior to the importer's return to India. In the present case, the invoice of the supplier M/s. Trading Enterprises, Dubai, UAE, is dated 15.4.90 drawn in the name of the appellant and on enquiry being made by the Department with the M/s. Honda Motor Co. in Japan for ascertaining the year of manufacture of the car, it was ascertained from the manufacturers that the car in question was manufactured on 5.6.91 and exported to UAE on 5.7.91. It was further ascertained that the car was sold to M/s. Trading Enterprises, Dubai, by Arabian Clearing and Forwarding, Dubai. Proceedings after due investigation were instituted against the appellant on the grounds that the car imported in the above circumstances was not permissible under OGL and require a valid licence/CCP and the proceedings resulted in the present impugned order.

3. Shri Mohan Parasaran, the learned Counsel for the appellant submitted that the appellant was a resident of Dubai from 9.3.89 to 15.7.91 and purchased the car in question under original invoice dated 15.4.90 filed alongwith the Bill of Entry dt. 12.1.92. The Department took a view that the year of manufacture of the car is not 1990 but June 1991 and this view was taken on the basis of a fax message received from the manufacturers, namely M/s. Honda Car Co. of Japan to the effect that the car was manufactured in June 1991 and exported from Japan to Dubai. The learned Counsel contended that the Department cannot place reliance on the fax message obtained at the back of the appellant without affording the appellant an opportunity to challenge the same. It was further urged that the learned adjudicating authority has not properly considered and taken note of other statutory documents such as the registration certificate, original invoice as well as the vehicle export certificate, etc., which would establish the year of manufacture of the car as 1990. No proper reason has been given in the impugned order for not accepting the above statutory documents. The learned Counsel further submitted that the Department consistently in any event has been permitting release of the cars imported without the necessary licence or CCP by permitting redemption of the same and even after the impugned order, the Department permitted clearance of similar goods on payment of fine and placed reliance on the order passed by the Collector of Customs, Cochin, dated 11.8.94 permitting release of Honda Accord Car of 1991 model. Reliance was also placed on the ratio of ruling of this Bench in the case of Col. of Customs Vs. Mr. Nanik G. Rohera reported in 1986 (6) ECR 13 (CEGAT MADRAS). Reliance on another order of Col. of Customs dated 18.7.94 releasing imported car in similar circumstances was also placed.

4. The learned DR contended that the appellant had not let in any evidence indicating any negotiation or dealing between the appellant and M/s. Trading Enterprises, Dubai. The vehicle in question was not directly sold to the appellant by M/s. Trading Enterprises. The car in question was manufactured only on 5.6.91 and exported subsequently on 5.7.91 as per the telex message of the manufacturers. Therefore, the plea of the appellant th