2010 (10) TMI 319 - AT - Customs

Classification - Valuation - Rule 12 of the Customs Valuation Rules 2007 - Confiscation - Notification 21/2002-Cus. Sr. No. 344 (2) - It is submitted that the vehicle was not in actual use in the UK after its registration and therefore it should be deemed to be a new vehicle in terms of the above Import Licensing Note - It was certified that the total cost of the vehicle was US 69, 545 inclusive of cost of conversion amounting to US 31, 000 as per the relevant invoice - By all standards therefore the car imported by the appellant was a second-hand/used vehicle which was imported from the United States after its modifications there - Decided against the assessee Regarding confiscation - It is nobody s case that such a vehicle could be imported without specific licence - Therefore the licensing requirement was violated in respect of the subject import and consequently as rightly held by the Commissioner the vehicle was liable to confiscation under Section 111(d) of the Customs Act Regarding valuation - It is settled law that valuation of second-hand goods cannot be made on a comparison with other second-hand goods - The conversion cost in respect of the vehicles imported by the appellant was US 31, 000 whereas that incurred in the case of the vehicle covered by contemporaneous Bill of Entry was US 50, 200 - the transaction value would reflect the basis of the assessable value of the goods under Section 14 of the Customs Act in the absence of evidence against acceptability of that value Regarding concessional rate - Commissioner s decision on the applicability of Notification No. 21/2002-Cus. would not get altered in the context of de novo consideration of the classification issue - The appeal is disposed of in

Summary

Issues Involved:
1. Whether the vehicle imported by the appellant is new or old.
2. Whether it is classifiable under CTH 8702, as claimed by the appellant, or under CTH 8703, as claimed by the Revenue.
3. What should be the assessable value of the goods.
4. Whether the car is liable to confiscation under Section 111 of the Customs Act, and, if so, what should be the quantum of redemption fine.
5. Whether the appellant is liable to be penalized under Section 112 of the Customs Act, and, if so, to what extent.

Detailed Analysis:

1. Whether the vehicle imported by the appellant is new or old:
The appellant argued that the vehicle was new and did not require a license for importation, relying on Import Licence Note (2)(I) under Chapter 87, which defines a "new imported vehicle" as one that "has not been registered for use in any country according to the laws of that country, prior to importation into India." The respondent contended that the vehicle was registered in the UK and must be considered used. The tribunal found substance in the respondent's submission, noting that the vehicle was registered in the UK and remained there for about a year before being re-exported to the United States for modifications. The tribunal concluded that the vehicle was a second-hand/used vehicle, holding the issue against the appellant.

2. Whether it is classifiable under CTH 8702 or CTH 8703:
The appellant claimed classification under CTH 8702, which covers motor vehicles for the transport of 10 or more persons, including the driver. The respondent argued that the vehicle, originally a five-seater, should be classified under CTH 8703. The tribunal noted that neither the Commissioner nor the Tribunal had the expertise to determine the designed capacity of the vehicle. Following the precedent set in Mahindra & Mahindra Ltd. v. Commissioner, the tribunal remanded the issue to the lower authority to obtain expert opinion from competent agencies like ARAI or VRDE on the designed seating capacity of the vehicle and then determine its classification.

3. Assessable value of the goods:
The appellant declared the vehicle's assessable value as Rs. 35,50,545/-. The adjudicating authority enhanced the value to Rs. 54,62,939/- based on a contemporaneous import from New Zealand. The appellant argued that the transaction value should be accepted under Section 14 of the Customs Act, citing various judicial decisions. The tribunal agreed with the appellant, noting that valuation of second-hand goods cannot be made on a comparison with other second-hand goods and that imports from different countries cannot be compared for valuation purposes. The tribunal set aside the enhancement of value, accepting the declared value of Rs. 35,50,545/-.

4. Whether the car is liable to confiscation under Section 111 of the Customs Act, and, if so, what should be the quantum of redemption fine:
The tribunal upheld the confiscation of the vehicle under Section 111(d) of the Customs Act, agreeing with the respondent that the vehicle was imported without the required specific license. However, the tribunal found no misdeclaration of value by the appellant and thus dropped the charge under Section 111(m). Consequently, the tribunal reduced the redemption fine from Rs. 14,00,000/- to Rs. 5,00,000/-.

5. Whether the appellant is liable to be penalized under Section 112 of the Customs Act, and, if so, to what extent:
Given the acceptance of the declared value and the reduction of the redemption fine, the tribunal also reduced the penalty on the appellant from Rs. 5,00,000/- to Rs. 2,00,000/- under Section 112(a) of the Customs Act.

Conclusion:
The tribunal concluded that the car was a second-hand/used vehicle, accepted the declared value, upheld the confiscation but reduced the redemption fine and penalty, and remanded the classification issue to the Commissioner for fresh decision based on expert opinion. The amount of duty shall be redetermined based on the fresh classification and the declared value of the vehicle. The appeal was disposed of accordingly.