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2013 (2) TMI 316 - AT - CustomsExemption under Notification No. 21/02 at Sr. No. 344(2) Whether car is a new one or an old car - Show cause notice was issued on the charges that the appellant has mis-declared the car as new - Car liable for confiscation under Section 111(m) of the Customs Act, 1962 - Appellant liable to penal action under Section 112(a) of the Customs Act, 1962 - Commissioner ordered that since the car is used one, therefore, the appellant is liable to pay differential duty of Rs. 11,43,304/-, a redemption fine of Rs. 12 lakhs and a penalty of Rs. 10 lakhs under Section 112(a) of the Customs Act, 1972. Held that - As per Board s Circular No. 1/2005-Cus., dated 11-1-2005, the Board has clarified that a new imported vehicle for the purpose of this chapter shall mean a vehicle that has not been registered for use in any country according to the laws of that country, whereas as per the referred Customs Notification, it should not be registered anywhere prior to importation. It was also noted that in many countries, registration of the vehicle is an essential requirement for moving the vehicle from the showroom or the factory to the airport. To verify whether the registration is a technical formality or not, the field formations may compare the date of dispatch of the car with the date of registration In this case, the car has been registered with the UK authorities on 20-5-2005 and was exported to India within 9-6-2005 i.e. almost within 19 days of its registration and the registration certificate clearly explicit that the vehicle is for direct export and cannot be used on UK roads prior to export. This clearly indicates that the vehicle is registered only for export purposes. Therefore, in terms of Board s Circular No. 1/2005, dated 11-1-2005, the vehicle is a new one. Further name and address of the manufacturer of complete vehicle is M/s. Toyota Motor Engineering & Manufacturing Europe SA/NV , Bruxelles (Brussels). If the name of manufacturer is correct then allegation of forged TAC is not sustainable as held by Hon ble Apex Court in the case of Parminder Kaur Parminder Kaur v. State of UP 2009 (10) TMI 657 - SUPREME COURT , wherein the Hon ble Apex Court has held that not every interpolation or tampering with a document amounts to a forgery. For there to be forgery, it is imperative that the document has been altered for some benefit or gain to a person and in the absence of such a benefit, there is no forgery In this case TAC certificate gives the name and address of the manufacturer correctly, therefore, the TAC produced by the appellant is correct and cannot be disputed and denied - Allegations in the show-cause notice are not sustainable. Further Page 1 of the TAC column 5 provided the name and address of the manufacturer and the same has been shown as manufactured at Brussels, which is admittedly not a forged document and page 2 of the TAC only shows the name and address of the assembly plant and as per DGFT Policy Circular No. 5/2004-2009, dated 15-10-2004, the TAC may be provided from a signatory country to the 1958 Agreement under WP 29. It can be seen from the list of the signatory to W.P. agreement, that UK is one of the signatory The same view has been taken by this Tribunal in the case of Vikram Tannan 2008 (3) TMI 205 - CESTAT MUMBAI , wherein it was held that TAC may be provided from any signatory country to the 1958 Agreement and Revenue s insistence that TAC should be obtained from country of origin is not correct - Impugned order set aside and appeal is allowed with consequential relief - Registry was directed to return the DDs, which were taken into the custody by this Tribunal at the time of final hearing, to the appellant In favour of assessee.
Issues Involved:
1. Preliminary objections regarding the hearing process. 2. Compliance with stay order conditions. 3. Determination of whether the car is new or used. 4. Eligibility for exemption under Notification No. 21/2002. 5. Requirement and authenticity of Type Approval Certificate (TAC). 6. Consequences of submitting forged documents. 7. Jurisdiction and validity of the show-cause notice. Detailed Analysis: 1. Preliminary Objections: The learned Joint Chief Departmental Representative (Jt. CDR) raised preliminary objections about the out-of-turn hearing of the appeal without an early hearing application. The Tribunal noted that the matter was mentioned on 26-7-2011 and 27-7-2011, and due to the availability of time, it was listed for hearing on 28-7-2011. Despite objections, the Tribunal proceeded with the hearing, considering the high volume of pending appeals and the consultation with the Jt. CDR. The preliminary objections were recorded and turned down. 2. Compliance with Stay Order Conditions: The Jt. CDR raised concerns about the lapse of bank guarantees required by the stay order. The Tribunal found that the appellant produced Demand Drafts (DDs) as security, which complied with the stay order. The Tribunal relied on the decision in HPCL v. CCE, Mumbai, to assert that the appeal could proceed as there was no formal order of dismissal for non-compliance. 3. Determination of Whether the Car is New or Used: The appellant claimed the car was new, supported by a registration certificate from the UK stating it was for direct export and not used on UK roads. The Tribunal considered the Board's Circular No. 1/2005-Cus., which clarified that temporary registration for export does not interfere with the notification benefit. The Tribunal concluded that the car was new based on the proximity of registration and shipment dates and the explicit statement in the registration certificate. 4. Eligibility for Exemption under Notification No. 21/2002: The Tribunal held that since the car was new, the appellant was eligible for the exemption under Notification No. 21/2002-Cus., provided other conditions were met. 5. Requirement and Authenticity of Type Approval Certificate (TAC): The Tribunal examined whether a TAC was required and if the submitted TAC was genuine. It was noted that TAC is not required for every subsequent import once a similar car model has been imported and cleared. The Tribunal found that the name and address of the manufacturer on the TAC were correct, and the alteration alleged by the Revenue did not amount to forgery. The Tribunal referenced multiple cases, including Ankineedu Maganti and Metro Palace Hotels Pvt. Ltd., to support that TAC was not essential for subsequent imports. 6. Consequences of Submitting Forged Documents: The Revenue alleged the TAC and certificate of origin were forged. The Tribunal found that the primary details on the TAC were correct and that any alterations did not benefit the appellant, thus not constituting forgery. The Tribunal cited Parminder Kaur v. State of UP, emphasizing that forgery requires alteration for personal gain, which was not evident in this case. 7. Jurisdiction and Validity of the Show-Cause Notice: The appellant argued that the show-cause notice under Section 28 of the Customs Act was invalid without finalizing the provisional assessment. The Tribunal did not delve deeply into this issue as it had already concluded that the vehicle was new and the TAC was correct, rendering the show-cause notice allegations unsustainable. Conclusion: The Tribunal set aside the impugned order, allowing the appeal with consequential relief. It directed the return of the DDs taken into custody during the final hearing. Pronouncement: The judgment was pronounced in Court on 30-11-2011.
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