TaxTMI 
TaxTMI 
2024 (2) TMI 1270
X X X X Extracts X X X X
X X X X Extracts X X X X
....s, new, which have not been registered anywhere prior to importation, - (a) if imported as Completely Built-up Units (CBU) Explanation I. - "Completely Built-up Unit' means completely assembled vehicle, whether or not fitted with tyres or batteries. Explanation II. - For removal of doubts, it is hereby clarified that if the engine and the gear box assemblies are installed in the body assembly of a vehicle, then such vehicle shall be deemed as a Completely Built-up Unit. 60% - - (b) if imported in any other form 30% - - 1.1 The vehicle was imported from UAE. The first check examination report of vehicle stated as follows:- "New, Make Nissan year of manufacture 2012, Model, Petrol (TPKNRGLY62EM7), Engine No. VK56081574A, Chassis No. JNITANY 62000609, 4 doors, Right Hand Drive, Colour Black, Reading 121 km, Fuel, Petrol, Number of seats 8, since catalogue not submitted, other details Could not be verified' 1.2 The adjudicating authority observed that, (i) the importer has not submitted Type Approval/COP by the listed agency country of manufacture hence has not complied as Rule 126 of Motor vehicle Rule 1989; (i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....which is not the same. The value re-determined on the basis of value of car of Australia was held to be not sustainable. The order passed by adjudicating authority was set aside by the Commissioner (Appeals) and the appeal filed by importer was allowed. 1.5 Aggrieved by such order, the department is now before the Tribunal. 2. The Ld. Authorized Representative Shri R. Rajaraman appeared and argued for the department. It is submitted that the importer had not submitted valid Type approval/COP from the manufacturer country as per Import Licensing for chapter 87and this issue has not been discussed by the Commissioner (Appeals) 2.1 While filing B/E, the goods were declared by importer to be new. On perusal of the Vehicle Export Certificate dated 19.03.2013 it was seen that the vehicle was registered in UAE in 2013. As per condition at Sl. No. (2)(I)(c) Of the Policy notes to chapter 87 states that 'vehicle has not been registered for use in any country according to the laws of the country prior to importation into India'. The vehicle imported having been registered in UAE cannot be considered as a new vehicle. The relevant policy notes referred by Ld. AR are as under:....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed provisions will not apply to the imports of new vehicles:- (i) For the purpose of certification as per para (c) (1) above; (ii) For the purpose of defence requirement. f. The above mentioned provisions will also not apply to the import of new vehicles for R & D purpose by vehicle manufacturers and auto component manufacturers. However, the vehicles imported by both these categories for R & D will not be registered under the CMVR Rules in the country and will not ply on Indian roads. The customs will make necessary endorsement at the time of clearance of these vehicles. g. In case the country of manufacture is a land locked country and the shipment takes place from another country, the vehicles would deemed to have been exported from the country of manufacture provided there are supporting documents to track the vehicles from the country of manufacture to the Port of Landing and from there, to the Port of Destination." "With regard to the valuation of the car, on verification it is seen from the website (www.nissan-me.com") of M/s. Nissan Middle East FZE, Dubai, the regional headquarters of M/s. Nissan Motor Corporation, Japan, that th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....from the Australian website of M/s. Nissan Motor Corporation (www.nissan.com.au), the value of the vehicle in Australia (right hand traffic country), recommended drive away price was AUD 1,22,688 which included Nissan's recommended dealer delivery fee, GST and Luxury car tax, 12 months registration and compulsory third party insurance. The FOB value of the vehicle was arrived at AUD 91,456 by adjudicating authority by subtracting all the above mentioned charges including customs duty. The CIF value of the imported vehicle was arrived at AUD 93,430 by adding the actual freight and insurance incurred by the importer i.e. USD 2,054 (equivalent to AUD 1,974 at the current exchange rate) to the FOB value of AUD 91,456. Accordingly, the assessable value arrived at Rs. 53,50,433/- was fair. 2.3 The Commissioner (Appeals) in impugned Order dated 09.04.2014 in 1 para at page No.6 has observed that "It is not known why the value of model mentioned in the import invoice was not confirmed from the original manufacturer itself. In that case, the Commissioner (Appeal) could have remanded back the case to Original Adjudicating Authority instead of allowing the appeal. Further, in this case....
X X X X Extracts X X X X
X X X X Extracts X X X X
....with the car dealer and thereafter purchased by the importer. The Tribunal observed that there is no allegation that it is used by anyone before export into India or that it was registered for use. As per Import Licensing Note I(I)(b) to determine a vehicle as used car, it should be registered for use abroad. In the case of CC Vs Noshire Moody reported in 2012-TIOL-391 HC- Mum-Cus, the Hon'ble High Court considered similar issue when the importer purchased the car from the dealer in U.K, and settlement Commission had noted that the registration is only for the purpose of complying with the requirement of the licensing authority in U.K, the finding of the Tribunal that the car is not old and is a new one was upheld by the Hon'ble High Court. 3.2 The decision in the case of Abbas Kurma Puthoor Vs. CC, Cochin 2008 (240) ELT 98 (Tri-Chennai) was relied. It is submitted that in this case, the Tribunal referred to Circular 01/2005-Cus dated 11.01.2005 issued by Ministry where in it is clarified that when the registration is only technical formality, and the registration is not for use of car abroad, the benefit or Notification should not be denied. 3.3 The Ld. Counsel submi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y the department is that the appellant has not produced type approval / COP certificate by the listed agency country of manufacture. The appellant has produced copy of the GSO conformity certificate. The original authority has held that in the said certificate there is mention of left hand drive. The vehicles used in UAE are of right hand drive and that therefore the said certificate cannot been accepted as compliance of Rule 126A of Central Motor Vehicle Rules, 1989. The copy of the said certificate has been produced by the learned counsel before us. It is a certificate issued by manufacturer in Japan wherein it is stated that, "we hereby certify that the vehicles manufactured by Nissan Motor Co; Ltd. Type Y 62 (4 Door, Wagon, 4WD VK56, 5AT), Petrol Model year 2013 Category Multi Purpose Vehicle Produced in and after Month September Year 2012 will satisfy the GSTO Technical Registration' The importer has opted to purchase the vehicle through the dealer in UAE. The vehicle also is said to have been registered in UAE. In such circumstances, merely because the said certificate shows the vehicle as right hand drive, which is the model used in India, it cannot be said that the appellan....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Further, the value of the goods imported into Australia cannot be taken as a comparable value for redetermining the assessable value of the goods since the value differs on the basis of destination of shipment also. 8. In the case of AHAMMED KUNHI MOHIDEEN KUTTY Vs CC CHENNAI 2007-TIOL-1691-CESTAT-MAD it was held that it is settled law that before proceeding to determine the assessable value of imported goods, the assessing authority should state reasons for rejecting the value declared by the importer. The relevant paragraphs read as under: "4. With regard to valuation, we note that learned Commissioner rejected the declared value and chose to determine a value for the car under Rule 8 of the Customs Valuation Rules on the basis of listed price. We note that this is a case in which show-cause notice was waived by the importer. However, it appears from the records that the party was given an opportunity to furnish evidence in support of the declared value under Rule 10A of the Valuation Rules and accordingly they produced an invoice dated 5-12-2005 issued by one M/s. Choice Motors, who were claimed to be dealers, in UAE, of BMW car manufactured in Germany. This invoic....