TaxTMI 
TaxTMI 
2019 (5) TMI 925
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.... i. I disallowed the benefit of Notification No 021/2002- Cus Sr No 345 (1) as claimed by the importer and order that vehicle be assessed as complete vehicle new. ii. I reject the declare value of Rs. 7,58,388.21 under rule 12 of Customs Valuation (determination of Value of Imported Goods) Rule, 2007 and I re-determine the value of goods as Rs. 14,68,175.73/-. iii. Order for confiscation of the impugned goods, imported vide Bill of Entry No 763099 dated 28.01.2009, valued at Rs. 14,68,175.73/- (Rupees Fourteen Lacs sixty eight thousand one hundred seventy five and seventy three paisa only), under section 111 (d) & (m) of the Customs Act, 1962. However, I give the option for redemption of said goods on payment of fine of Rs. 12,00,000/- (Rs Twelve Lakhs Only), under Section 125 of the Customs Act on payment of appropriate duty. iv. I impose a penalty of Rs. 10,00,00/- (Rs. Ten Lakhs only) on the importer under Section 112 (a) of the Customs Act, 1962." 2.1 Respondent had filed Bill of entry No 763099 dated 28.01.2009 declaring the goods as "Harely Davidson VRSC CKD having registration No TBC ...." And sought clearance claiming benefit of Notification No....
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....release of vehicle against the fine as adjudged by the Commissioner (Appeal), said correspondences are reproduced below: 5.2 On the basis of the said correspondences learned counsel submitted that since the goods have not been released by the department even after dismissal of the stay application by the tribunal, till today, now the goods would have become junk and he is not interested in claiming the goods or clearing them for home consumption any more. Since he is not claiming said goods and do not intend to clear them from home consumption this appeal filed by the revenue has become infructuous and any order passed in the appeal cannot be implemented. 5.3 Taking note of the above submissions made by the Counsel for respondent and noting that the said revenue has ostensibly refused the clearance of the said goods as per the order of the Commissioner (Appeal), even after the dismissal of stay application filed by them against the said order of Commissioner (Appeal), we examine the grounds taken by the revenue in their appeal. The grounds taken by the revenue are reproduced below: "II. Once it is found invoice3 presented before assessing authority did not reflect co....
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.... matter was of clearance of new motor car where re-export was permitted and there was no dispute on benefit of notification claimed and applicability of duty. In the present case the goods have been misdeclared in respect of description willfully, knowingly and by suppressing the fact that vehicle was originally a complete bike. Hence, reliance placed is not applicable in the present case. Further, imposition of fine and penalty is based on value and duty evasion of the goods. In the instant case importer has evaded duty to the tune of more than 60% on declared value itself. Further, no reasons for reducing fine/penalty has been discussed in the order." 5.4 On the issue of valuation (para II of Ground of Appeal) Commissioner (Appeals) has in para 6 & 7 of impugned order held as follows: "6. So far as the valuation aspect is concerned, from the documents place on record, it is evident that the web-site relied by the ADC, shows prices prevalent is different Countries of Asia-Pacific region, including Australia, New Zealand, U.A.E, China, Hong Kong, India, Malaysia, Thailand & Singapore. From the Australian Web-site option, erroneously the ADC has taken price in US & inste....
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....t matter of adjudication proceedings or in appellate proceedings before the Commissioner (Appeal). In case revenue was aggrieved by adjudicating authority not proposing to add such charge to arrive at the assessable value, the correct course would have been to file appeal or cross objections before the Commissioner (Appeal). Since revenue has proceeded not to file any appeal/ cross objections before the Commissioner (Appeal) they could not have taken this ground for first time while filing the appeal before this tribunal. 5.6 On the issue of quantum of redemption fine and penalty raised by the revenue in para IV of the grounds of appeal we find that Commissioner (Appeal) has reduced the same relying on the decision of tribunal in case of rational Art Press [2007 (215) ELT 522 (T-Mum)] upheld by the Bombay High Court. Revenue has failed to establish as to why redemption fine should be more than that imposed by Commissioner (Appeal). In case of Jagdish Cancer & Research Center [2001 (132) ELT 257 (SC)] held as follows: "11. Whenever an order confiscating the imported goods is passed, an option, as provided under sub-section (1) of Section 125 of the Customs Act, is to be ....
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....t 1 By Hand Delivery/FAX: 27244822 Ref.No.SK/239/09/29/10 सीमा शà¥à¤²à¥à¤• आयॠJanuary, 2010 commissioner of Customs/ The Commissioner of Customs (Import), JNCH, Nhava Sheva, Dist.Raigad 400 707. Dear Sir, - Ear 22 JAN 2010 (Import) Jawaharlal Nehru Customs House, Sheva, Uran Raigad 25 HATS THE.. Re: In the matter of import of Harley Davidson Motor Cycle vide Bill of Entry No. 763099 dated 28.01.2009, Commissioner (Appeals)'s Order No. 749 (Gr.VB/JNCH/2009 dated 18.12.2009 and in the matter of letter dated 13.01.2010 in F. No. S/26-Misc-95/09 VB I refer to the above matter and I am acting on behalf of the Importer, Mr. Udit Sheth, who has placed in my hands letter dated 13.01.2010, informing him that the order passed by the Commissioner of Customs (Appeals) cannot be given effect to, since the department has decided to approach the Hon'ble CESTAT. When the order passed by the Commissioner of Customs (appeals) is binding and has not been set aside and / or stayed till date, it has to be followed and given effect to, unconditionally. These are principle....