2014 (12) TMI 768 - AT - Customs

Imports of high end cars/SUVs - Valuation - Old car or new car - Benefit of Notification No. 21/2002-Cus., dated 1-3-2002 - confiscation under Section 111(d) & Section 111(m) - Held that - All that the appellant has been arguing that the value should be taken based upon the import price of similar vehicles by the dealers in India. First of all, we find no such invoice has been produced. Even no claim has been made how much will be the value for the vehicles imported by the dealers in India. We also note that dealers would be importing the said car in large quantity and will be storing the cars in their showroom for sale. They will also be spending on advertisement etc. They also provide sale after service. Therefore, these two imports viz. by dealer and individual passengers are not comparable. In any case, since no invoice has been produced for the dealer s import nor it is stated what should be the correct value, we do not find any merit in the argument of the appellant. impugned order provides details of two Bills of Entry of similar car which were imported around the same time by individuals as in the present case. These details were also given to the appellant vide demand notice and he has not questioned the correctness of the same. We also note that the department has given depreciation for the period 10-11-2007 to 16-7-2008. The department has also decreased the value due to the fact that the impugned car was with 6-speed manual transmission system while in the two invoices it was R-Tronic transmission. - there is no such claim by the appellant that due to some extraordinary reasons they were able to get the car at a cheaper price. - Decided against the assessee. Old car or New Car - Held that - DRI approached the local dealers to find out certain details. They informed that the car was manufactured on 10-11-2007 in Neckarsulam, Germany and the car was registered first time on 7-12-2007 in UK. It was also indicated that the said car was repaired on 7-12-2007 on a customer complaint relating to Q/S/F, window goes up and then drops back down . At that time it has run 1030 kms. The date of shipment from Felixstowe was on 16-7-2008. We do not see any reason to discard the said details and M/s. Audi Mumbai had provided the said details at the request of investigating officers. - the car was used one. Consequently the benefit of Notification No. 21/2002-Cus., dated 1-3-2002 will not be available to the said vehicle. - Decided against the assessee. Absolute confiscation of cars - Held that - the adjudicating authority is required to give option to the owner of the goods or where such owner is not known to the person from whose possession or custody such goods have been seized. The only exception to the said position is in case of prohibited goods under the Customs Act or any other law, for the time being in force. It is true that the cars can be imported. However, these are not freely importable but there are policy conditions for the import of such vehicles. - option will have to be given for redemption as per Section 125 of the Customs Act, 1962 to the owner of the car or where such owner is not known to the person from whose possession or custody such goods are seized. Disposal and claim for sale proceeds - Held that - the application of sale proceedings will have to be as per Section 150 of the Customs Act, 1962. The car imported is chargeable to customs duty. The said customs duty has to go to Government Exchequer from the sale proceeds. In view of the said position, the ld. Adjudicating authority may first decide whether the car is available and whether the car is required to be redeemed on payment of redemption fine. Depending upon the factual position, the sale proceeds have to be decided as per Section 150 of the Customs Act along with any case law on the subject. Levy of penalty - Held that - it is very clear that the Appellant No. 2 has been importing the car by misdeclaring in the name of different persons and in this case he has imported the said car in the name of Appellant No. 1. We also note that only Appellant No. 2 approached CHA for clearance. In view of this position, penalties imposed under Section 112(a) and 114AA are upheld. The penalties imposed are not excessive. - Decided against the assessee.

Summary

Issues Involved:

1. Valuation of the imported car.
2. Condition of the car (new vs. used).
3. Absolute confiscation of the vehicle.
4. Disposal and claim for sale proceeds.
5. Imposition of penalties on the appellants.

Issue-wise Detailed Analysis:

1. Valuation of the Imported Car:

The appellant argued that the value of the car should be based on the price at which the original manufacturer in Germany sells similar cars to dealers in India, rather than contemporary imports. The adjudicating authority, however, used the value from similar cars imported around the same time by individual passengers, providing depreciation benefits and adjustments for different transmission systems. The appellant's reliance on the Supreme Court's decision in Eicher Tractors Ltd. was dismissed as the facts were different. The Tribunal upheld the valuation method used by the adjudicating authority, finding no merit in the appellant's arguments.

2. Condition of the Car (New vs. Used):

The appellant contended that the car was new, citing an examination report. However, evidence from Audi Mumbai indicated the car was manufactured in November 2007, first registered in December 2007, and had been used, including a repair record. The Tribunal found no reason to discard this evidence, concluding the car was used. Consequently, the benefit of Notification No. 21/2002-Cus. was denied.

3. Absolute Confiscation of the Vehicle:

The appellant argued that absolute confiscation was unwarranted as cars are freely importable and not prohibited goods. Section 125 of the Customs Act requires an option to pay a fine in lieu of confiscation unless the goods are prohibited. The adjudicating authority did not determine whether the car was prohibited. The Tribunal remanded the matter to the adjudicating authority to decide if the car was prohibited. If not, the option to redeem the car should be given.

4. Disposal and Claim for Sale Proceeds:

The appellant claimed the car was ordered for disposal but not auctioned, citing contradictory statements from the department. The Tribunal directed the adjudicating authority to ascertain the car's status. If the car is available and not prohibited, redemption should be offered. If already disposed of, the adjudicating authority must examine if sale proceeds should be refunded, following Section 150 of the Customs Act and relevant case law.

5. Imposition of Penalties on the Appellants:

Penalties of Rs. 3 lakhs each were imposed on Appellant Nos. 1 and 2 under Sections 112(a) and 114AA. The Tribunal found their conduct warranted the penalties, which were not excessive. Appellant Nos. 3 and 4, who were involved in clearing the car, were not found to have knowledge of the misdeclaration and thus their penalties were set aside. Similarly, the penalty on Appellant No. 5 was also set aside as there was no evidence of his involvement in the clearance, though he permitted the use of his CHA license.

Conclusion:

The Tribunal upheld the valuation and confiscation of the car but remanded the matter regarding absolute confiscation and disposal for further determination. Penalties on Appellant Nos. 1 and 2 were upheld, while those on Appellant Nos. 3, 4, and 5 were set aside. Appeals were disposed of accordingly.