2019 (5) TMI 925

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....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 021/2002 Sr No 345 (1), which is applicable to motor vehicle if imported in ....

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....s 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 correct description of the foods it is to be rejected under rule 12 of the said Valuation Rules, value cann....

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....cation 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 & instead of Australian $. The appellant has correctly shown price e.g. of the same model of Car- Viz. BMW 3i for India, Singapore ....

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.... 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 given to the person to pay fine in lieu of the confiscation and on such an order being passed according to sub-section (2) of Section 125, the person "....