TaxTMI 
TaxTMI 
2006 (1) TMI 126
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....try No. 545360 dated 24-4-2002. The declared value of vehicle was Rs. 22,81,151/- (Rupees Twenty Two Lakhs Eighty One Thousand One Hundred Fifty one only). A Bond and Bank Guarantee had been furnished by the importer at the time of import of the vehicle to pay on demand and without any demur the Customs duty saved with interest in the event of them not fulfilling any conditions of the Customs Notification No. 49/2000. The Bank Guarantee was given by the Development Credit Bank Ltd., Bandra, Mumbai for Rs. 26,21,157/ (Rupees Twenty Six Lakhs Twenty Seven Thousand One Hundred Fifty Seven only) which is valid till 30-4-2011. Another Bond dated 27-4-2002 also given for fulfilling of Rules 126, 122 and 138 of the CMVR 1989. 4. As the conditions....
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....on and that the liability to produce the Homologation Certificate and the liability to fulfill the conditions of CMVR were on the dealer and not on the importer. (iii) A redemption certificate was granted by the office of the Jt. DGFT Mumbai to the appellants for redeeming the Bank Guarantee imposed in the Licence. (iv) Bank Guarantee should be enforced only in case of non-fulfillment of export obligation or for the violation of the provisions of Notification 49/2000-Cus. dated 27-4-2000 or by reason of any breach of any terms and conditions of the Bond dated 27-4-2002 (v) Till the expiry of appeal period and thereafter till the disposal of the stay application no coercive action for recovery of fine and penalty can be taken by the depar....
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....uld have been and ought to have been incorporated in the licence itself by the issuing authority. The Customs authorities should not venture to fill the gap in absence of any condition. The contentions raised by the appellants gain further strength from the fact that such a waiver of homologation condition, that too on post-fact basis, has been granted by the DGFT in the case of import by one Shri Mihir J. Doshi for a similar car, Hence, I found that the licence issued by DGFT for import of car exempts from the provisions of the Notification No. 4(RE-2001)/1977-2002 dated 31-3-2001 and the same can not be questioned by the Customs authorities. 8. It is pertinent to take note of another development, namely, the exemption of the homologation....
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....on sound reason and common sense." 9. Perusal of the impugned Order-in-Original reveals that the scheme devised for enforcement with criss-cross references made in the EXIM Policy to the CMVR and the set of parameters stipulated for various categories have not been understood in the right perspective by the ld. Commissioner of Customs, Para 6(1)(c) of the Notification No. 4 (RE-2001)/97-02, dated 31-3-2001 stipulates three conditions and also mentions the consequences of failure to meet the conditions in the last sentence as: "In case of failure to do so, no further import of new vehicle of that model shall be allowed thereafter". This clearly spells out the intention of the legislature. Rule 126 of CMVR also talks of the testing of the pr....
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....cars. 11. Perusal of the bond and the bank guarantee executed by the appellants at the time of the import reveals that the two instruments were executed for the sole purpose of fulfillment of the conditions stipulated under Notification 49/2000-Cus., dated 27-4-2000, Clause 5 of the bond referring to the provisions stipulated in the Export-Import Policy 1997-2000 or in the Handbook of Procedures can not be stretched to include such conditions which ought to have been imposed at the time of import by the customs authorities after satisfying them selves that no earlier import of the same model had been imported and that the importer was expected to fulfill the conditions. Especially the bank guarantee, a commercial instrument having been exe....