TaxTMI 
TaxTMI 
2014 (12) TMI 768
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....ted was a "New Audi R8 4.2 coupe". The said vehicle was imported in the name of Appellant No. 1. Copy of Passport of Appellant No. 1, invoice, Bill of Lading, type Approval Certificate, PAN card, etc. were recovered. The Bill of Entry No. 963210, dated 18-8-2008 was filed. The Custom House ordered for first check examination. The value declared in the Bill of Entry for the said vehicle was GBP 42,000/-. The initial investigation indicated that both the value as also the condition of the vehicle i.e. new instead of old were misdeclared and Appellant No. 1 in whose name the car was imported was not the real owner and he has lent his name for monetary consideration to Appellant No. 2. Appellant Nos. 3, 4, 5 were CHA, persons connected with filing of B/E, etc. Based upon the investigation, show cause notice was issued to all the five appellants and the impugned order came to be issued. In the impugned order, the declared value of Rs. 35,53,200/- was rejected and the car was valued at Rs. 54,95,616/-. Since the vehicle was found to be old, the benefit of Notification No. 21/2002-Cus., dated 1-3-2002 was also denied. Further, the car was confiscated under Section 111(d) & Section 111(m) ....
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....te also argued that Appellant No. 2 was an authorized Customs House Agent earlier and he used to take responsibility to handle customs related activity. When the appellant No. 1 imported the cars, he took the help of the Appellant No. 2 and Appellant No. 2 cannot be held as the owner of the vehicle. Ld. Advocate further stated that the department (in the Writ Petition No. 2426 of 2012 filed before the Hon'ble Mumbai High Court) stated that disposal order for the said car has been given. Ld. Advocate also stated that he did not object to the disposal of the car as the market price taken was on higher side. Ld. Advocate further stated that on taking up about the disposal of car under RTI, he has been informed that as per the available records, the car mentioned in the application is not auctioned by the disposal section. Ld. Advocate stated that thus the department is taking contrary stand one before the Hon'ble High Court and other in pursuance of the RTI. 3. Appellant No. 2's main argument is that the car was imported by Appellant No. 1 and he has nothing to do with the said importation and therefore, there is no reason to impose any penalty on him. 4. Appellant Nos....
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....on benefit keeping in view the date of manufacture and date of import. Even for different transmission system, the department has already reduced the value, therefore, the value arrived is correct. He also stated that undervaluation is very clearly established for the reason that the invoice produced does not pertain to the under consideration car. Learned A.R. also argued that the information was obtained from Audi dealers in Mumbai. They have supplied the information that was available with them and they were not in a position to give number of the details. Ld. A.R. stated that clearly provisions of Section 111(d) and 111(m) were attracted in this case and car is correctly confiscated. Since it is a case of fraudulent import, no option to release the car has been given. As far as Appellant Nos. 3 & 4 are concerned, he stated that both of them had their own company but were using the licence of other CHA and operating in that name. The very fact that they were clearing large number of cars on the basis of documents given by Appellant No. 2 alone indicates that they have actively associated in the clearance of the said car. As far as Appellant No. 5 is concerned, he is the CHA lice....
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....ame was stopped and local purchase was started with the result, the vendor had huge stock and was forced to sell it at a discounted price. In view of this, the Hon'ble Supreme Court has directed to accept the transaction value. In the present case, there is no such claim by the appellant that due to some extraordinary reasons they were able to get the car at a cheaper price. We, therefore, reject the said contention. We uphold the valuation adopted in the impugned order. 8. The next issue taken up by the appellant is that the car is new and not used one. The argument advanced is that the evidence is of an interested party i.e. M/s. Audi, Mumbai and they were not allowed to cross-examine them. Further, the examination report of the car shows that the car is a brand new car and in view of this position, the car should be considered as the new one. We find that DRI approached the local dealers to find out certain details. They informed that the car was manufactured on 10-11-2007 in Neckarsulam, Germany and the car was registered first time on 7-12-2007 in UK. It was also indicated that the said car was repaired on 7-12-2007 on a customer complaint relating to "Q/S/F, window go....
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....en seized. The only exception to the said position is in case of prohibited goods under the Customs Act or any other law, for the time being in force. It is true that the cars can be imported. However, these are not freely importable but there are policy conditions for the import of such vehicles. We find that the ld. adjudicating authority has not gone into the details and not given any finding whether or not the car imported can be considered as prohibited. In these circumstances, we find force in the argument of the Appellant No. 1 regarding absolute confiscation. We, therefore, set aside the order relating to not giving an option to redeem the said car. For this purpose, we remand the matter to the adjudicating authority who would determine whether the car in question is prohibited. In case it is not prohibited then option will have to be given for redemption as per Section 125 of the Customs Act, 1962 to the owner of the car or where such owner is not known to the person from whose possession or custody such goods are seized. 10. Another issue raised is relating to disposal and claim for sale proceeds. According to the appellant, the department has given an affidavit t....
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....e confiscation. In fact, appellant as per his own admission was given notice but he did not participate in the sale proceedings. Thus the application of sale proceedings will have to be as per Section 150 of the Customs Act, 1962. The car imported is chargeable to customs duty. The said customs duty has to go to Government Exchequer from the sale proceeds. In view of the said position, the ld. Adjudicating authority may first decide whether the car is available and whether the car is required to be redeemed on payment of redemption fine. Depending upon the factual position, the sale proceeds have to be decided as per Section 150 of the Customs Act along with any case law on the subject. 11. As discussed above, valuation as well as confiscation of the goods are upheld. However, Adjudicating authority has to decide whether car is prohibited goods so as to justify absolute confiscation, otherwise option to redeem the same will be required to be extended as per Section 125 of the Customs Act, 1962. If the car is not available and already disposed off, sale proceeds will be required to be distributed as per Section 150 of the Customs Act, 1962 read with any case law. 12.&emsp....