TaxTMI 
TaxTMI 
2021 (9) TMI 1140
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....ry No.4239556 dated 01.01.2014. The importer classified the said goods under CTH No.87039090 of the Customs Tariff Act, 1975. The assessable value of the goods under the B.E. is Rs. 17,99,141.28. 3. The examination of the goods contained (in Container No.ESPU 8012959) was conducted on 03.01.2014 in the presence of independent witnesses and G card holder of CHA firm. During the course of examination of the said container, it was found that the goods contained in them were 60 numbers of E-Rickshaw in CKD condition without battery. The said Rickshaws in CKD condition consisted of different parts i.e. Transmission, Chassis, Rear Axle, Motor, Controller, Speedo Meter, Seats, Head Light, Tyres, Wires, etc. Further one representative sample of Motor and Speedo Meter were drawn for further investigation. The representative sample of Motor was drawn alongwith Rear Axle, because Motor and Real Axle were screwed together. The importer was asked to specify the Wattage of the Motor by the DC(Import-shed) on 4.1.2014, and was also asked to submit the catalogue of the goods, but the importer did not reply to the said query, neither any wattage of Motor was declared in the Bill of Entry by the ....
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....supplied exclusively by traction battery installed in the vehicle. On scrutiny of the said Bill of Entry, it has been observed that the power of electric motor has not been declared by the importer in the said Bill of Entry, and even on specific query, the importer chose to be silent on this issue and thus, it appeared to Revenue that it can be reasonably concluded that the Wattage of the Motor is more than 250 Watts. From the above facts, it is evident that the goods imported are battery operated vehicle falling under CTH 8703. 7.1 The import policy relating to the new "motor vehicle" falling under CTH 87 inter alia reads as under:- "Rule 2(ii) of Import Policy and conditions of Chapter 87 prescribes that :- "The import of new vehicles shall be subject to the following conditions:- a. The new vehicle shall- (i) Have a speedometer indicating the speed in Kilometers per hour; (ii) Have right hand steering and controls (applicable on vehicles other than two and three wheelers); (iii) Have photometry of the headlamps to suit "keep-left" traffic; and (iv) Be imported from the country of manufacture. The country of ....
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.... Competent Authority /Agency is required as per the provisions of Rule 126 of the CMV Rules, which the appellant have not submitted. 7.4 Accordingly, it appeared that the appellant have violated the provisions of Section 111(d) of the Act, as they have attempted to import the goods contrary to the provisions imposed under the Motor Vehicle Act. Accordingly, the goods under import are liable to confiscation as 'Type Approval Certificate' is required for import of motor vehicle under Rule 2(II)(C)(i) of the Import Policy. 7.5 Accordingly, show cause notice was issued on 4.3.2016 proposing to confiscate the goods under import valued at Rs. 17,99,141/- imported vide Bill of Entry No.4239556 dated 1.1.2014 under Section 111(d) of the Act, further penalty was proposed under Section 112(a) of the Act. 8. The appellant contested the show cause notice by filing the written submissions. The appellant had, inter alia, contended that - (i) They have submitted the catalogue (TEE32) for completely assembled e-rickshaw. (ii) Rules of interpretation under Customs Tariff Act cannot be used or referred for interpretation of the provisions of the Import Policy/Foreign Trade....
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....both sides. On this plea, we agree with Shri R. Santhanam, Rules of Interpretation of Tariff and Explanatory Notes to HSN, cannot be applied for the purpose of interpreting the ITC Policy. When the policy states in the negative list, that consumer goods are required to be imported on licence, it means only the complete motor vehicles, which are understood to be in the list and not on the basis of understanding in terms of Customs Tariff Act. Accordingly, we are of the view that confiscation of the goods and imposition of penalty are not warranted. (ix) K.R. Trading Co. Vs. CC, Calcutta -1999 (110)ELT 746 (T) (x) CC vs. Ankineedu Mangant -2012 (275) ELT 551 (Ker.) 9. It was urged that Rule 2 (u) of the Central Motor Vehicle Rules read with Rule 126 of the CMVR and read with ITC (HS) Classification of Chapter 87, cannot be read into the Import Policy Condition No.2(II)(C)(i), is not applicable in the facts of this case for import in CKD condition. The appellant have not violated the conditions of the Import Policy and is not obligated to produce the 'Type Approval Certificate' in view of the aforementioned judicial rulings, particularly the law pronounced by the ....
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....ared. 9.6 Vide order-in-original dated 12.09.2016, the Joint Commissioner confirmed the proposals in the show cause notice ordering for absolute confiscation under Section 111(d) of the Act plus penalty of Rs. 2 lakhs under Section 112(a). 10. Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals) on the aforementioned grounds:- "(i)The Commissioner (Appeals) after going through the facts on record and also perused the certificate by M/s. Ajay - Contractor, who are specialised in e-rickshaws assembling, who has certified that the following parts are further required for completing the e-rickshaw viz. Brake pad, horn operation switch, light operation switch, battery, battery charger, charging adaptor, wire for connecting head lights and connecting rods, etc. It has also been observed that although the appellant did not know technical details about the e-rickshaw, but they have not disputed the fact that is wattage of the motor is more than 250 watts, and that there was no declaration of the power of the motor in the bill of entry. Accordingly, he rejected the appeal and upheld the order-in-original." 11. Being aggrieved, the appellant is ....
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.... in CKD condition. Reference was made to the ruling in Bengal Immunity Co. Vs. State of Bihar - 1955 (2) SCR 603, wherein the Hon'ble Supreme Court has held that it is well settled that -- A legal fiction created by a Statute cannot extend beyond the purpose for which it is so created. Accordingly, prays for allowing the appeal. 16. Ld. Departmental Representative for Revenue relies on the impugned order. He also relies on the Division Bench of this Tribunal in M/s. Olympic Exports Vs. CC, New Delhi being Final Order No.52630 of 2018 dated 24.07.2018 by a Division Bench of this Tribunal, wherein with respect to the similar import of e-rickshaw in CKD condition along with spare parts, this Tribunal held that restriction as per Import Policy clarifies that it applies to a new vehicle, which is not manufactured or assembled in India. Further, held that a narrow view of the issue will not lead to proper appreciation of the licensing conditions. It was further held that e-rickshaw in CKD kit are for ease of transport, and require compliance of CMV Rules. 17. As regards the query by the Bench at the time of hearing, whether in adjudication order, there is any reference to the te....