TaxTMI 
TaxTMI 
TaxTMI 
2015 (1) TMI 621
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....lue has been under-declared. Further, the Revenue has made a case that the said vehicle was registered abroad before import and is therefore an old and used car and therefore, they are not be eligible for the benefit of Notification No. 21/2002 (Sl. 344). 2. The case was adjudicated vide order dated 12-4-2010 wherein the Commissioner rejected the declared value and further the benefit of notification 21/2002 was denied as the vehicle was registered prior to its importation thereby not fulfilling the condition stipulated in the said notification. Further, the vehicle was confiscated under Section 111(m) of Customs Act, 1962 read with Rule 2(c), Rule 11; Rule 12, Rule 14(1) and Rule 14(2) of the Foreign Trade (Regulations) Rule, 1993 for under valuation. The appellant was given an option to redeem the same on payment of fine of Rs. 5.50 lakhs and was also imposed a penalty of Rs. 2.20 lakhs under Section 112 of Customs Act. The appellant did not want to clear the said vehicle on enhanced value but wanted to re-export. After prolong litigation and direction by the CESTAT, the case was re-adjudicated and the learned Commissioner vide the impugned order dated 9-4-2012, rejected th....
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....benefit of Notification No. 21/2002. 4.2 The learned Advocate also quoted this Tribunal's judgment in the case of Chemsilk Commerce (P) Ltd. v. CC (Port), Kolkata - 2009 (233) E.L.T. 113 (Tri.-Kolkata) and argued that in view of the said judgment, the vehicle is not required to be confiscated. The learned Advocate also quoted the judgment of the Hon'ble Bombay High Court in the case of CC (Import) v. Noshire Moody - 2014 (300) E.L.T. 205 (Bom.). 5. The learned AR reiterated the findings in the impugned order as also the earlier order. He further stated that the appellant's contention that the value should be determined on the basis of value of similar goods being imported by the dealer in India is incorrect, for the simple reason that the dealers are required to maintain show room, provide after-sale service, spend on sales promotion, advertisement etc. In addition they also buy vehicle in large quantity. Import by the appellant and dealers are not comparable. The learned A.R. stated that in any case the appellant has not produced any dealer invoice to examine and comment on the same. The learned A.R.'s contention relating to determining the value as per the C.B.E. & C.....
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.... Noshire Moody (supra) is concerned, the Hon'ble Bombay High Court said that the Settlement Commission found certain facts and the Hon'ble High Court did not find anything perverse or contrary in that. Situation is very different in the present case. 6. We have considered the rival submissions. We note that the appellant imported a car from M/s. Hyperformance Cars Ltd. U.K. It is not in dispute that the said Company is owned by the brother of the appellant. Invoice of manufacturer is in the name of M/s. Hyperformance Cars Ltd., and delivery to Mr. L Bestonso. It is also observed from the show cause notice that brother of the appellant viz. L. Bestonso also has a bank account in India. It was also found from the bank account of Shri Lorenzo Bestonso, a huge amount was transferred to the account of the appellant and the said amount in turn has been remitted to U.K. in relation to the payment of the present vehicle, (para 11 of the show cause notice). From the financial transaction, it is very clear that the appellant along with his brother has imported the vehicle (perhaps with a view to sell the same in domestic market). Section 14 of the Customs Act relating to valuation of t....
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....argeable with reference to such tariff value. Explanation. - For the purposes of this section - (a) "rate of exchange" means the rate of exchange (i) determined by the Board, or (ii) ascertained in such manner as the Board may direct, for the conversion of Indian currency into foreign currency or foreign currency into Indian currency; (b) "foreign currency" and "Indian currency" have the meanings respectively assigned to them in clause (m) and clause (q) of Section 2 of the Foreign Exchange Management Act, 1999 (42 of 1999). 6.1 As mentioned above since the appellant and the supplier of the goods are brothers one has to examine whether they are to be considered as related persons. We note that the Rule 2 of the Customs Valuation Rules defines the terms related persons as under :- "Rule 2. Definitions. (1) ........................... (2) For the purpose of these rules, persons shall be deemed to be "related" only if - (i) they are officers or directors of one another's businesses; (ii) they are legally recognised partners in business; (iii) they are employer and emp....
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....provisions of clause (b) of this sub-rule." 6.3 In the present case, the department has obtained invoice from some source (informer). The said invoice in turn was sent to the manufacturer of the car who has confirmed the genuineness of the same. The details of the invoice have been given to the appellant. In fact, original of the said invoice or equivalent invoice should be available with the appellant or his brother. The appellant has not produced any evidence to counter the same. The very fact that the vehicle was purchased on 31st May 2008 from the manufacturer and was thereafter shipped in July 2008 from U.K., the said invoice or original invoice would be available with the appellant's brother i.e. supplier and it should have been possible for the appellant to produce the same during investigation or in reply to the show cause notice. The appellant could have obtained copy of the invoice from manufacturer in case it is lost. In fact this Tribunal did ask the appellant if he has got the invoice or can obtain the same from his brother supplier and matter adjourned. The learned Advocate on the next date of hearing stated that the matter is 5 to 6 years old and they do not ha....
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....e at Edinburgh. This establishes the fact that the vehicle was registered in U.K. for use in that country and not for the sole purpose of exporting the same out of the country, as claimed." 6.6 During the arguments, the learned Advocate for the appellant explained that they were not in a position to purchase, the vehicle from one of the five DVLA office and therefore, they got the same registered from DVLA office at Edinburgh. Since in the said office, vehicle can be registered for use in that country therefore the same was registered in the name of Shri Lorenzo Bestonso. However, the purpose of the said registration was not to use the vehicle but only to get registered the vehicle and transfer to the port of export. It is obvious from the odometer reading that the vehicle was not used. 6.7 We have considered the submissions and we find force in the arguments of the appellant that the vehicle is new as is evident from the odometer reading. The fact that the vehicle was registered prior to importation is only for the purpose of completing the formalities in that country. We also note that C.B.E. & C. Circular 1/2005-Cus., dated 11-1-2005 clarifies that when the registrat....