TaxTMI 
TaxTMI 
2019 (5) TMI 272
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.... "1 Appeal is admitted on the following substantial questions of law. "1) Whether in the facts and circumstances of the case, the Appellate Tribunal is correct in upholding duty demand from the Appellant (2nd buyer of the car)? 2) Whether in the facts and circumstances of the case, the Appellate Tribunal is correct in upholding penalty of Rs. 3,00,000/on the Appellant under section 112(a) of the Customs Act,1962? 3) Whether in the facts and circumstances of the case, the Appellate Tribunal erred in not deleting demand of duty from the Appellant (2nd buyer of the car), since the vehicle was seized by the customs on 13.8.2007 and confiscated by the Order of the Commissioner dated 24.12.2008, with an option to ....
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.... name. 6. Thereafter, in March, 2005, Mr. Oberoi sold the said car to the appellant for a consideration of Rs. 12 lakhs. An amount of Rs. 10 lakhs was paid by Demand Draft and Rs. 2 lakhs was paid in cash towards the purchase of the said car by the appellant to Mr. Oberoi. At the time of purchase of the said car, the appellant had obtained finance from M/s. Kotak Mahindra Primus Ltd.. On purchase, the appellant got the registration of the said car transferred from the name of the importer / original owner to himself. This as Mr. Oberoi the immediate seller of the said car to the appellant had not registered the transfer of the said car in his name. 7. Thereafter, investigations were commenced by the Directorate of Revenue Intelligence....
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....ed upon the appellant under Section 112(a) of the said Act. 9. Being aggrieved with the order dated 24th December, 2008, the appellant preferred an appeal to the Tribunal. The Tribunal by the impugned order dismissed the appellant's appeal. This by holding that there was a deliberate mis-declaration of the year of manufacture and claiming benefit of depreciation under the Transfer of Residence Rule at the time of importing the said car. Thus, the said car being smuggled car, was liable for confiscation was correctly confiscated under Section 111 of the Act with an option to redeem the same on payment of fine under Section 125 of the Act. So far as penalty is concerned, the impugned order upheld the imposition of penalty holding that ....
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....appellant has not exercised. Thus, no occasion to apply Section 125(2) of the Act can arise. It is further submitted that the issue now stands concluded in favour of the appellant by the decision of this Court in Commissioner of Customs Vs. VXL India Ltd. (2006) 193 ELT 396. (d) As against the above, Mr. Kantharia, learned Counsel appearing for the Revenue in support of the impugned order of the Tribunal submits that the appellant is liable to pay the differential duty in view of the clear mandate of Section 125(2) of the Act. This requires the owner of the goods to not only pay the redemption fine but also the duty and other costs payable on the offending imported said car. (e) We have examined the rival contentions. From....
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....e car, the occasion to invoke Section 125(2) of the Customs Act, would not arise. The said car continues to vest in the Central Government by virtue of Section 126 of the Act. Under Section 125 of the Act, there is no obligation on a party to pay the fine in lieu of confiscation but the party is given an option to redeem the goods, if he so desirous by paying fine in lieu of confiscation of the offending goods. In this case, the appellant has not exercised the option of paying the redemption fine and, therefore, the occasion to pay in addition to the redemption fine the duty and charges payable in respect of the offending goods, does not arise. In fact, this issue is no longer res integra as the Supreme Court in Fortis Hospital Ltd....
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.... impugned order that as the appellant was a financier for import of the said car is perverse. In fact, the same is clear from the finding of the adjudicating Authority at paragraph 7.1 thereof that the appellant had obtained loan from M/s. Kotak Mahindra Primus Ltd. on 25th March, 2005 so as to purchase the said car from Mr. Oberoi. Thus, on the face of the record, it is clear that the appellant had in no manner financed the import of the vehicle which have taken place in the year 2002. (c) On the other hand, the learned Counsel for the Revenue submits that the penalty imposed upon the appellant of Rs. 3 lakhs under Section 112(a) of the Act cannot be found fault with as the Tribunal observed that he had financed the import of the ....