TaxTMI 
TaxTMI 
2013 (2) TMI 316
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....2011 and sought out-of-turn hearing without having filed any early hearing application. Early hearing application can be filed only in certain specified situations as per the practice and precedent at Mumbai, namely :- (i) High revenue stakes (over Rs. 1 crore) (ii) Matter having recurring effect, (iii) Matter relating to a live consignment, or (iv) The issue being a 'covered matter'. The grounds stated in the mentioned application did not relate to any of these issues. Therefore, the mater could not have been listed for out-of-turn hearing, that too, without any EH application. In spite of my strong objections, the mention application was allowed by the Bench and matter was listed for final hearing on the very next day, that is, on 28-7-2011. It was directed in the open court that the matter would be listed last in the Cause list of 28-7-2011 and would be taken up only if the Bench had spare time after exhausting all the matters in the regular Cause List for 28-7-2011. He further submitted that on 28-7-2011 he fell ill and could not attend office and the proxy DR sough....
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....the learned Jt. CDR is recorded and turned down. 6. Vide Office Order No. 163/2011, dated 9-8-2011, the Hon'ble President modified the sitting of the Bench with a direction that the appeal in hand be heard till its conclusion. Therefore, the matter was heard on 10-8-2011. On 10-8-2011, when the matter came up for hearing, the learned Jt. CDR further raised objection that as per stay order in this case, the appellant was required to satisfy two conditions i.e. kept the two Bank guarantees of Rs. 2 lakhs and Rs. 10 lakhs alive till the disposal of the appeal and the appellant would not dispose of the car till the disposal of the appeal. He submitted that he has received a letter from the Commissioner of Customs (Import), New Customs House, Mumbai that the two Bank guarantees had lapsed long time back and despite the repeated request, the appellant has not renewed the same. Therefore, he made a request to dismiss the appeal for non-compliance of the provisions of Section 129E of the Customs Act, 1962. 7. On query of the Bench, the learned Counsel for the appellant submitted that as per his knowledge the Bank guarantees are alive and sought to get confirmation from the ....
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.... formal order of dismissal of appeals for non-compliance of stay order on record. 8. The learned Jt. CDR further submitted that the Bank guarantees have been lapsed on 6-12-2009 and 23-8-2010 respectively, therefore, during the impugned period the stay order was not complied with. Hence, the appeal is to be dismissed. 9. We have gone through the records before us and vide order dated 1-4-2009 this Bench has extended the order of grant of stay on the condition imposed earlier subject to keeping the Bank guarantees enforceable by the appellant. As the Bank guarantees were alive on 1-4-2009, this Tribunal extended the grant of stay. If the time of Bank guarantees was to expire, it is the duty of the Commissioner before whom the Bank guarantees were executed to encash the Bank guarantees in the event, if the same is not extended and to move to the Tribunal for dismissal of the appeal for non-compliance of the provisions of Section 129E of the Customs Act, 1962 before final hearing. As admitted by the learned Jt. CDR, the Bank guarantees have been expired on 6-12-2009 and 23-8-2010, no steps have been taken by the concerned Commissioner for encashment of bank guara....
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....k basis. The examination report revealed that the Model is Amazon, Chasis No. JTEHCO5J 304029640, year of manufacture is 2005, the Car is RHD and the car appears to be new. (v) The appellant submitted a TAC issued by service Public Mobilite et Transports Bruxells. On examination of the certificate, it was found that at Sr. No. 0.5 & 0.8, the name of manufacturer/assembly plant was mentioned as Toyota Motor Engineering & Manufacturing Europe, Brussels. The enquiry with M/s. Toytoa Kirloskar Motors, Bangalore, however, revealed that the vehicle was manufactured in Japan. As per para 7 of the Import Licensing Notes under Chapter 87 of Classification of Import & Export items 2004-2009, the TAC has to be submitted from the country of Origin, i.e. Japan in this case. The appellant stated that DGFT's Policy Circular 5/2004-09 dated 15-10-2004 allows clearance of car on submission of TAC from a country other than country of origin also. As it was not clear whether TAC from a place, other than country of origin, could be accepted, and the appellant submitted only a copy of the TAC, it was decided to allow the clearance of vehicle provisionally on submission of Bon....
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....o. 344(2) as applicable for new vehicles @ 60% BCD, CVD @ 16% + 8% SED + NCCD @1% + 0.125 cess on Customs duty and 2% Educational cess on CVD, whereas the vehicle was old and applicable to Customs duty @ 100% + CVD @ 16% + SED @ 8% + NCCD @ 1% + cess @ 0.125% + 2% Educational cess on Customs duty + 2% Educational Cess on CVD. (ix) Therefore, a show cause notice was issued on the charges that the appellant has misdeclared the car as new, therefore, the appellant has rendered the car liable for confiscation under Section 111(m) of the Customs Act, 1962 and also as the appellant had knowingly and will fully declared the car as new to evade payment of the applicable Customs duty, by this act has rendered himself liable to penal action under Section 112(a) of the Customs Act, 1962. (x) The show-cause notice was adjudicated and it was held that the car is used one, which was declared as new is liable to confiscation under Section 111(m) of the Customs Act. Since the appellant has deliberately attempted to mislead the department by submitting forged documents and also attempted to evade duty as well as circumvent the licencing requirements, he is ....
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....ion. It was, accordingly, decided by the Board that temporary registration of the kind discussed above, shall not interfere with the notification benefit. (c) He submitted that in this case, the car was manufactured on 27-3-2005 and the appellant purchased this car from Toyota (UK) for personal use in India on 3-5-2005. The car was first registered for export in the UK on 20-5-2005; and was actually shipped on 9-6-2005. Therefore, there is only a fortnight between the date of registration and the date of shipment. The dates are sufficiently proximate to indicate that the car was not registered for use in the UK and the benefit of the circular dated 11-1-2005 should be given to the appellant. The said circular has not been considered in the impugned order. In the impugned order, it is referred that the registration certificate issued by the UK authorities and attention has been drawn to the warning. However, the said order does not refer to a material part of the document which states that "vehicle purchased for direct export cannot be used on UK roads prior to export". This makes it abundantly clear that the car was not used in the UK and was merely regis....
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....0 (262) E.L.T. 484, wherein it was held that once a similar car is imported and cleared, TAC for a subsequent vehicle need not be insisted upon. This shows the nature of a TAC, therefore, TAC is required for the first import of a car, and not for every subsequent car. The TAC is merely a certificate that shows that a particular make or a model of a car conforms to technical specifications. Once such a TAC has been provided for one car, it need not be produced for every subsequent import. (g) In the case of Metro Palace Hotels Pvt. Ltd. v. Commissioner of Customs (Import), Mumbai-II - 2008 (227) E.L.T. 234 (Tri.-Mum.), it was held that the onus is on the customs authorities and the authorities have full knowledge of which cars are imported into the country. It is for them to demand a TAC for the first import of a car. In case no such specific demand is made by the authorities, it is open to the importer to believe that no TAC is required. (h) He further submitted that the TAC is not required in case import from Japan as it is settled that Japan does not issue an TAC as held by the Tribunal in the case of J.S. Gujral v. Commissioner of ....
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....ative that the document has been altered for some benefit or gain to a person and in the absence of such a benefit, there is no forgery. As in this case the appellant was not required to submit TAC which alleged to be forged, therefore, there was no benefit to him in forging the said documents. Therefore, there is no forgery committed by the appellant in this case as TAC was not required. (l) He further submitted that the entire proceedings are without jurisdiction. It is well settled that no show-cause notice can be issued under Section 28 of the Customs Act unless there has been a final assessment. In this regard, reference may be had to Section 11A of the Excise Act which is in pari materia with Section 28 of the Customs Act. The Hon'ble Apex Court in the case of Commissioner of Central Excise v. ITC - 2006 (203) E.L.T. 532 has held that 'a proceeding under Section 11A of the Act cannot, therefore, be initiated without completing the assessment proceedings. In this case there was only a provisional assessment as evident from the Bill of Entry, therefore, without finalization of provisional assessment, show-cause notice cannot be issued. As show-c....
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....as Toyota Motor Engineering & Manufacturing Europe SA/NY' in Bruxelles (Brussels), therefore, the car was manufactured in Belgium and not in Japan. The TAC issued at Belgium was sufficient for the compliance with the para 7 of the Import Licensing Notes. Even the Registration Certificate of the car (for export from UK) bear the correct TAC number. Therefore, he submitted that as the TAC was produced from country of origin i.e. Belgium although they have produced which was not required to be produced as held by various judicial decisions cited herein above. Therefore, allegation of producing forged TAC certificate is not sustainable. Hence, the demand of duty for short levy, confiscation and penalty are being void ab initio due to lack of jurisdiction to issue demand notice under Section 28 read with 124 of the Act. Therefore, he prayed that the impugned order be set aside and the appeal be allowed with consequential relief. 13. On the other hand, Shri A.K. Prasad, learned Jt. CDR, strongly opposed the arguments advanced by the learned Advocate. He submitted that the appellant has imported the used car and he is not eligible for exemption under Notification No. 21/2002-Cus. ....
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....om the showroom to the airport/port for export. 13.2 Once the car is held to be a used one, it requires a Homologation certificate and not a Type Approval Certificate. The appellant could not produce any Homologation certificate for the car. The reliance of the appellant in the Metro Palace Hotels Pvt. Ltd. (supra) that Homologation Certificate is required for the first import of a specific model only and not for subsequent imports. He submitted that the said decision is wrong, therefore, cannot be taken as precedent. Further, the order has been passed by a Single Member Bench and the said decision proposed to cast the burden on the department to establish that the appellant's car was the first car of that model imported into India. In fact the Bench did not properly appreciate the issue at hand. Since the appellant is claiming exemption from production of homologation certificate as required under the relevant import policy provisions, the burden is on him to establish that they are eligible for exemption. As in the present case the appellant has not been able to establish that a car of the same model had earlier been imported in India supported by a homologation certifica....
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.... fraud/forgery and that fraud vitiates everything as held by the Hon'ble Supreme Court in the case of Commissioner of Customs, Kandla v. Essar Oil Ltd. - 2004 (172) E.L.T. 433 (S.C.). In the case of New India Insurance Co. v. Kamla and Others - (2001) 4 SCC 342, the Hon'ble Apex Court held that forgery makes a document null and void forever and it cannot acquire legal validity by any process of sanctification whatsoever later on. Thus, the appellant cannot take recourse to any Tribunal or Court judgment to sanctify their forgery. The decision of J.S. Gujral (supra) is clearly distinguishable on the following grounds :- (i) In that case, the car was imported by a party in India directly from Japan, whereas in the instant case the car has been imported from U.K. (ii) In the case of J.S. Gujral (supra), the case was meant for the Japanese market and hence the appropriate authority in Japan clarified that they were not in a position to give any TAC required as per the India law. In the present case, the car was not meant for use in Japan but was designed for use in Europe. When a company manufactures a car of the same model but for ....
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....sposed of by the Apex Court. The another arguments of the appellant that in case of import of a car from Japan, TAC need not necessarily be from Japan but could be from any country which is as signatory to the 1958 agreement under WP 29. For that the appellant has relied on the case of Vikram Tannan (supra). This case is also of no help to the appellant. He submitted that this decision is also a wrong decision and passed by a Single Member Bench, which is not binding on the Division Bench. He further submitted that the said judgment relied on DGFT Circular No. 5/2004-09. The scope and interpretation of the said Circular was referred by the adjudicating authority in the present case to the DGFT for clarification, and it was clarified that the said Circular applies to cars manufactured within the European Union only and in that case the TAC can be given by any other member-country of manufacture of the car. This clarification was not available in the case of Vikram Tannan (supra). The appellant also relied on the Ankneedu Maganti (supra). In that case also, the car was also imported directly from Japan. In view of the above submissions, he submitted that the appeal be dismissed. 1....
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....iven in the document is of 20-5-2005. Therefore, due to these discrepancies, the car is an old one. 16. The adjudicating authority has held the car as an old one relying on the warning in the registration certificate issued by the UK agencies, which is reproduced herein as under :- "The vehicle to which this document relates has been delivered without payment of VAT, Vehicle Excise Duty and Import Duty where appropriate on condition that it will not be or be offered, exposes, or advertised to be lent, hired, pledged, given away, exchanged, sold or otherwise disposed of in the Untied Kingdom, unless specific authorization by the Commissioners of Customs and Excise. Further information may be obtained from the local office/VAT office of Customs and Excise." Therefore, the sole basis for holding that the car is an old one is only the registration certificate and no other evidence has been relied to arrive at the decision that the car is an old car. 17. For better appreciation, the Registration Certificate is reproduced herein as under :- 18. We have perused the registration certificate, which clearly states that "vehicle purchased for direct export ....
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....cial propriety. 20. As the car is new one then as per para 7 of the Import Licensing Notes under Chapter 87 of Import & Export Items 2004-09, a TAC is required to be submitted from the country of origin. The adjudicating authority held that if the car is new one then the appellant has to comply with the following conditions - (a) The car had to be imported directly from country of origin, and (b) it should be accompanied by a TAC from an accepted agency from the country of origin. The adjudicating authority has held that the appellant has contravened the condition as the country of manufacture i.e. in this case is Japan, whereas the car has been imported from UK. He also held that a TAC submitted by the appellant is forged certificate of origin snowing the country of origin as Belgium and in the investigation it was found that the actual country of origin was Japan. But, the learned Advocate for the appellant submitted that the car was examined by the departmental authority on 3-8-2005 and it was stated that the car was new one, therefore, the car was released on ITC Bond on 4-8-2005 and as per the condition of the Bond, the appellant was required to provide TAC within six ....
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....orter wrote a letter to the Japanese authorities and in reply of the query made by the importer, it was revealed that Japan does not issue any TAC and that was in the year 2007 and in the instant case import has been made in year 2005, and the decision of J.S. Gujral (supra) cannot be relied upon as the same has been challenged before the Hon'ble Apex Court. In the case of Jagat Malkani (supra), this Tribunal again held that no TAC can be insisted upon since the law cannot compel someone to do the impossible. For this also, the ld. Jt. CDR submitted that the decision of the Hon'ble High Court is an interim order and not final and the Hon'ble Supreme Court has remanded the matter for fresh adjudication, which is still pending. Therefore, the decision of the Hon'ble Bombay High Court has no force. 23. We have considered the decision passed by the Tribunal in the case of Jagat Malkani vide Order No. A/37/CSTB/WZB/Mum/2010/C-II, dated 21-1-2010, wherein this Tribunal has held that TAC is an essential requirement. Therefore, if we consider the submission made by ld. Jt. CDR that the said decision is of no value, in that circumstance TAC is not required, which is not correct. The....