Abdul Rahiman v. Union of India and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN`** ``` WEDNESDAY, THE 5[TH] DAY OF JULY 2023 / 14TH ASHADHA, 1945 WP(C) NO. 14073 OF 2015 ``` ## **`PETITIONER:`** ``` ABDUL RAHIMAN AGED 45 YEARS S/O.IBRAHIM, R/AT MOILAKIRI, P.O.MANIKKOTH, KANHANGAD, KASARAGOD DISTRICT. BY ADV SRI.KODOTH SREEDHARAN ``` ## **`RESPONDENTS:`** |**`1`**|**`UNION OF INDIA`**| |---|---| ||**`REPRESENTED BY THE SECRETARY TO GOVERNMENT,`**| ||**`DEPARTMENT OF REVENUE, MINISTRY OF REVENUE,`**| ||**`NEW DELHI-110001.`**| |**`2`**|**`COMMISSIONER OF CUSTOMS`**| ||**`CUSTOM HOUSE, KOCHI-682009.`**| |**`3`**|**`JOINT COMMISSIONER OF CUSTOMS`**| ||**`CUSTOM HOUSE, KOCHI-682009.`**| ||**`SMT.C.G.PREETHA, CGC`**| ||**`SRI.THOMAS MATHEW NELLIMOOTTIL, SC`**| ||**`SRI.P.R.SREJITH, SC, CENTRAL BOARD OF EXCISE AMP`**| ||**`CUSTOMS`**| ||**`SRI.C.DINESH, CGC`**| |**`THIS`**|**`WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON`**| |**`05.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`**|| ``` WP(C) NO.14073 OF 2015 ``` ``` 2 ``` ## **`JUDGMENT`** ## **Dated this the 5[th] day of July, 2023** This writ petition is filed seeking the following prayers: _“(i) A writ of certiorari or any other appropriate writ or order or direction quashing Ext.P1_ _(ii) An order of stay of all further recovery proceedings pursuant to Ext.P1, pending disposal of the writ petition.”_ 2. Heard the learned counsel for the petitioner and the learned standing counsel appearing for the respondents. 3. It is submitted by the learned counsel for the petitioner that the petitioner is an auto-rickshaw driver and is a permanent resident of Manikkoth in Kasaragod District. It is contended that Ext.P1 order of penalty was imposed on him under the provisions of Section 112(a) of the Customs Act, 1962 (hereinafter referred as ‘the Act’) on the ground that his passport and signatures had been utilized for the import of a Toyota Land Cruiser vehicle through the Cochin Port. It is further contended that the petitioner had specifically raised an objection stating that he was unaware of the import of any vehicle in his name and that he had given his passport to one Mr.Ali in Mumbai ``` WP(C) NO.14073 OF 2015 ``` ``` 3 ``` for the purpose of securing an employment abroad and had also signed some printed forms for the said purpose. It was his specific contention that his passport as well as his signature could have been fraudulently utilized for the import. 4. The learned counsel for the petitioner submits that the vehicle allegedly imported in his name was never recovered by the Customs and no confiscation proceedings have been initiated under the provisions of Section 111 of the Act. It is submitted that it was found in Ext.P1 order that the recovery of customs duty was also time barred. It is submitted that only personal penalty under Section 112(a) of the Act had been imposed on the petitioner. It is the specific contention raised by the learned counsel for the petitioner that even the factum of the import of a vehicle had not been established conclusively and that therefore, the imposition of the personal penalty on the petitioner was completely unjustified. 5. The learned counsel for the petitioner places reliance on a decision of this Court in **Abdul Rahiman E. v. Union of India and Another** [2008 (3) KHC 392] and a decision of the Apex Court in ``` WP(C) NO.14073 OF 2015 ``` ``` 4 ``` ## **Employees State Insurance Corporation v. HMT Ltd. and Another** [2008 KHC 4060] to contend that the fact that an illegal import had occurred should at least have been conclusively proved before a personal penalty could have been imposed against the petitioner. 6. A counter affidavit has been placed on record by the respondents. It is stated that bill of entry No.138592 dated 09.02.2004 was filed in the name of the petitioner for the clearance of used Toyota Land Cruiser 1998 model with accessories. It was submitted that the Customs House Agent had submitted an affidavit that the petitioner was continuously residing abroad since 1987 and he had come to India for permanent settlement on 10.12.2003 and had imported the 1998 vehicle which was bought second hand for use in India. The vehicle was also duly registered in the petitioner’s name in Mumbai. It is submitted that the assessable value of the car was fixed at Rs.6,57,309/- and the car was assessed to duty as per the model declared by the importer. Subsequently, a letter was received on 20.03.2009 from the office of the Commissioner of Customs (Import), Special Intelligence and Investigation Branch (Imports), Mumbai that ``` WP(C) NO.14073 OF 2015 ``` ``` 5 ``` the import of cars based on forged documents had been suspected. It is stated that the above imports had taken place through the Port of Cochin and evasion of customs duty was suspected. It is stated that on further enquiries, 33 accused persons including car dealers had been charge-sheeted and a criminal case had been registered against them. It is stated that as per letter dated 21.10.2011, the Economic Offences Wing, Crime Branch of Mumbai Police had forwarded copies of RTO documents pertaining to registration of the Toyota Land Cruiser vehicle imported by the petitioner. It is stated that in the bill of entry, the model of the vehicle is shown as 1998 while in the application for registration submitted before the Registering Authority at Mumbai, the year of manufacture is shown as 2003. It is stated that since the actual month and year of manufacture of the vehicle was 2003, it was found that there was a misdeclaration by the importer which is the reason why the personal penalty had been imposed. It is further submitted that the impugned order was an appealable order and that the writ petition filed without exhausting the alternate remedy is liable to be dismissed. ``` WP(C) NO.14073 OF 2015 ``` ``` 6 ``` 7. I notice that this writ petition was admitted on 12.05.2015 and an interim order was passed interdicting coercive steps against the petitioner. The interim order was extended from time to time and is still in force. Ext.P1 would go to show that the specific charge against the petitioner is that he had declared the month and year of manufacture of the Toyota Land Cruiser vehicle imported by him erroneously as 1998, but that the actual year of manufacture as evidenced by the application for registration preferred before the Registering Authority at Mumbai was 2003. The petitioner’s specific contention that he was not involved and that he had no knowledge of the import of the car was considered by the authority, but it was found that the reply was merely an afterthought to escape the charges levelled against him. Thereafter, on a finding that there has been a misdeclaration regarding the year of manufacture, it was held that the declared value of the vehicle was liable to rejection. It is on these premises that the personal penalty has been imposed on the petitioner under Section 112(a) of the Act. The learned counsel for the petitioner specifically contends that the vehicle has not been traced at all and that ``` WP(C) NO.14073 OF 2015 ``` ``` 7 ``` there is nothing to establish the actual year of manufacture of the vehicle and therefore the charge of misdeclaration is completely unsupported by any evidence documentary or others. 8. Having considered the contentions advanced and in view of the fact that the petitioner has raised a specific contention that he was unaware of the import of the vehicle in his name and that his passport and signatures obtained fraudulently had been misutilized by car dealers for some fraudulent transactions, I am of the opinion that the said contention raised by the petitioner requires a consideration. Even in a case where a specific guilty intention is not required, as argued by the learned counsel for the respondents, the fact that an offence has taken place is a prerequisite for the imposition of a personal penalty under Section 112(a) of the Act. 9. In the above view of the matter, I am of the opinion that the issue requires a further consideration. Ext.P1 order is therefore set aside. There will be a direction to the 2[nd] respondent to consider the issue afresh and pass appropriate orders taking note of the specific contention raised by the petitioner that there is no material available ``` WP(C) NO.14073 OF 2015 ``` ``` 8 ``` for inflicting the personal penalty on him. Necessary orders shall be passed, with notice to the petitioner and after hearing him, within a period of two months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. ## **`Sd/-`** ``` ANU SIVARAMAN JUDGE ``` ``` NP ``` ``` 9 ``` ## **`WP(C) NO.14073 OF 2015`** ## **`APPENDIX OF WP(C) 14073/2015`** ``` PETITIONER’S EXHIBITS EXHIBIT P1TRUE COPY OF THE ORDER NO.47/2015 DATED 31.03.2015 ISSUED BY THE 3RD RESPONDENT. RESPONDENTS’ EXHIBITS: NIL ```