2018 (10) TMI 41

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.... RHD NEW BRAND CADILLAC ESCALADE ESV LUXURY COLLECTION 10 SEATS, 6.2 LTR, VB PETROL CHASSIS No.1GYS4HKJ3GR342043" with declared supplier as Auto Group International (Pvt.) Ltd., Sri Lanka and the country of origin declared as Australia. Pursuant to investigations conducted by DRI, it emerged that the appellants had imported the impugned 10 seated SUV vehicle from Sri Lanka with a declared value of USD 96,000 which included basic price of the vehicle as USD 83,000 by classifying the same under CTH 87029011 attracting BCD @ 40%,CVD @ 27% and NCD @ 1%. Appellants had submitted a letter dt. 13.03.2017 from Autogroup International Pvt. Ltd., Sri Lanka confirming that the vehicle had been converted by them at Sri Lanka as per ADR compliance (ADR ....

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.... order of the original authority and rejected the appeals. Hence both these appellants are before this forum. 2.1 The matter was also heard on earlier dates. In between, Ld. Advocate for the appellant Shri P.A. Augustian had preferred a petition under Rules 40 & 41 of the CESTAT (Procedure) Rules, 1982 dt. 05.04.2018 wherein inter alia, it had been prayed to issue directions to the department to release the car subject to execution of bank guarantee to cover the differential duty and to enable completion of registration process of the vehicle. 2.2 Today during further hearing of the matter, Ld. advocate has confined his arguments, only to request for permission to allow re-export of the impugned vehicle subject to payment of a nominal....

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....rtain terms. This being so, the appeal / petition as modified by the Ld. Advocate is only restricted to allowance of more lenient terms in the matter of fine and penalty, in particular, with regard to penalty imposed under Section114AA ibid and appropriation of amount paid towards duty. 5.2 From the SCN dt. 30.8.2017, we find that raison d'être for proposing imposition of penalty under Section 114AA of the Customs Act, 1962 is given in para 18 as under : "18. Further, M/s.Orion also appear to beliable to penalty in terms of Section 114AA of the Customs Act, 1962 for having intentionally made,used false and incorrect declaration / documents to evade payment of legitimate customs duties as discussed in the preceding paras. ....

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....on 114AA ibid in the matter. Even the LAA, while upholding the order of the original authority, has not analysed or justified the imposition of penalty under Section 114AA ibid. There is also no finding or justification given by any of the lower authorities for appropriating an amount of Rs. 57,40,501/- paid by the appellant towards duty of the impugned vehicle, in a situation when at the same time re-export of the vehicle has been allowed on payment of redemption fine. It is also interesting to note that while appropriation towards "duty" amount has been made, the provisions of Customs Act under which such appropriation has been made has not been indicated by any of the lower authorities. In any case, when the importer is accepting the opt....