ORDER

Per G.A. Brahma Deva :

This appeal arises out of and is directed against the Order-in-Original No. 48/83 dt. 15.9.1983 passed by the Collector of Customs, New Delhi.

2. FACTS : On 7.7.1981 Mercedez Benz Van bearing registration No. CHA-2519, Chasis No. 309126-13-135-920; Engine No. 615-912-10-014133 made in Germany fitted with Radio Blaupunkt make, four bank, left hand drive, was seized by DRI Officers from the possession of the appellant since he could not produce any documents to show the legal import/acquisition/possession of the said vehicle. On detailed examination it was found that the vehicle in question had been imported by one Me. Waltgang Blob, a German Tourist through Land Customs Station, Attari Road on 10.6.1980 under Carnet-de-passage No. 035893 kd. and that though the said Carnet was discharged, the Car was not actually re-exported and unlawfully kept in India. Accordingly, show cause notice was issued for confiscation of the said Vehicle Under Section 111(d) and 111(o) of the Customs Act, 1962, in addition to imposing penalty under Section 112 of the Act. In reply to the show cause notice as well as during the personal hearing before Adjudicating Authority it has been pleaded on behalf of the party that the appellant had purchased the said vehicle from one Ramgopal of Chandigarh for Rs. 30,000/- and the same was transferred in the name of the appellant on 20.3.91. It was contended that he purchased the Car in accordance with the law and he did not act or abet in any action which rendered the car liable to confiscation or to attract penalty under the Customs Act. On adjudication, the Collector disbelieved the statement of the appellant that he purchased the said car against cash payment on the Road side without any verification with regard to the identity of its holder/seller since the said Ramgopal neither appeared nor traced. Collector observed that purchase of the car and too with a duplicate registration book is a wilful action on the part of the appellant who being allured by the element of profit entered the deal with some one which was in utter disregard of law. The very purchase, possession, acquisition and use of the tainted car by the appellant by itself is an offence under the Customs Act. He held that appellant was connived with and abetted the other persons including Mr. Walfgang and Ramgopal after the importation of the car from the retention into India which was liable to confiscation from the day of its import. Accordingly, he ordered for absolute confiscation of the vehicle in question valued at Rs. 1,15,000/- under Section 111(d) and 111(o) of the Customs Act in addition to imposing personal penalty of Rs. 28,750/- under Section 112 of the Act.

3. Shri Harbans Singh, learned advocate, appearing for the appellant, submitted that he is not contesting the impugned order of confiscation of the car as such, but there is no justification for absolute confiscation as well as imposition of penalty. He said that appellant was neither an Importer nor an abetter but only a bona fide purchaser. There is no evidence to show that appellant had come in contact with Mr. Wolfgang Blob, a German National who had imported the vehicle under Carnet-de-passage. Since the car had already been registered in favour of Shri Ramgopal at Chandigarh by the Transport Authority of Union Territory of Chandigarh, same was purchased on bona fide belief on payment of cash or on obtaining necessary documents in the normal practice of the trade of vehicle, it was duly registered in the name of the appellant. He submitted that it is not just and proper for the Department to dispose off the goods by way of auction sale when the confiscation order was under challenge before the Tribunal. Since the Department has already auctioned the car on 25.9.1990 for Rs. 42,300/- he requested that Department may be ordered to refund a sum of Rs. 30,000/-, the price which the appellant had paid and balance of Rs. 12,300/- may be adjusted by way