2017 (2) TMI 472

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....hat the same was registered in the name of Sh. Suresh Thakker, Raigad. The appellant could not produce any documents evidencing the legal import of the bike and therefore the same was detained by the officers on the reasonable belief that the bike was smuggled into India in violation of the provisions of Customs Act, 1962. 2. The DRI officers addressed letter to M/s Honda Motor Cycle and Scooter India Private Ltd., Gurgaon with a request to provide the import details, year of manufacture, CIF value and name of the buyer of the motor bike and further, if the said bike was imported or not by their unit. Details was received which showed that the bike was of the year model 2005, date of production 21.06.2004, sale date 11.12.2007 and sale price US $24,499. In this connection, it was seen that the registration of the bike was obtained by submitting the bill of entry No. 672139 dated 16.01.2008 showing the port of import as JNPT, Nhava Sheva, Mumbai and the importer was Sh. Abbas Ali Khan, Hyderabad. The description of goods imported in the bill of entry was Honda Motor Cycle Chassis No. 1HFSC63J55A100202 showing payment of Rs. 1,78,381/- towards duties pertaining to the said bill of e....

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....y of Rs. 13,55,578/- the penalty of Rs. 45,000/- and redemption fine of Rs. 1,50,000/-. On his request to release the bike the same has been released to the appellant. The appellant has filed the present appeal challenging the order passed by the Commissioner (Appeals) and also aggrieved by the duty, penalty and redemption fine imposed upon him. 6. On behalf of appellant, the Cd. Counsel Sh. Anwar Ali put forward the following main submissions: (i) That since the imported bike is registered in India the same cannot be said to be imported goods and no duty can be imposed on the subsequent purchaser. The appellant had purchased the imported bike after verifying the RC issued by RTA, Raigad. The appellant being an innocent bonafide purchaser for valid consideration the order of confiscation and imposition of redemption fine and penalty is unreasonable and illegal. (ii) That the authorities below ought to have seen that the bike was registered with RTA, Raigad, and the same was being used for 3 years before the appellant purchased the bike. Being a subsequent purchaser the appellant has no obligation to prove legal import of the bike, nor pay the customs duty of Rs. 13,55,578/-. As ....

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....ed the bike from Sh. Sajjid Kanday by paying transaction in cash he could not provide the correct whereabouts of Sh. Sajjid Kanday. So also the whereabouts of She Suresh Thakker in whose name RC is issued by RTA, Raigad could not be traced. The summons send to Sh. Suresh Thakker was returned as unserved. The bill of entry dated 16.01.2008 is in the name of Sh. Mohd. Abbas Ali Khan. Summons send to his address mentioned in the said bill of entry also was returned unserved. Thus all the three persons related to the bike prior to the appellant could not be traced. Therefore the contention of the appellant that he is an innocent purchaser for valid consideration cannot be considered at all. The alternate plea of the appellant that he should be given benefit of the duty paid as per the bill of entry cannot be accepted for the reason that the bike imported vide bill of entry is different and is not the bike that is in possession of the appellant. The bike in possession of the appellant has not suffered any duty and therefore the appellant is liable to pay the duty. That redemption fine and penalty imposed are legal and proper. 8. I have heard both sides. There is no dispute that the Cha....

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....rest payable has not been paid, part paid or erroneously refunded, the proper officer may, - (a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, within one year; (b) in any other case, within six months, from the relevant date, serve notice on the person chargeable with the duty or interest which has not been levied or charged or which has been so short-levied or part paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice:" As rightly submitted by the learned SDR Customs duty is an indirect tax levied on goods and not on person. The duty is to be paid in respect of goods, Section 28 nowhere provides that the duty short paid etc. is to be charged from "importer" as contended by the learned Advocate appearing for the Appellant. Duty short-paid/levied, etc. can be demanded from any person chargeable with the duty. If "person" is to be equated with importer, notice under Section 28 cannot be issued to a buyer whom erroneous refund has been made to. We also find that sub-section (2) of Section....