2016 (1) TMI 838 - AT - Customs

Import of Car - demand of duty from the second purchaser - Additional Commissioner held the car liable to confiscation under Section 111(d) of the Customs Act, 1962 read with Public Notice of DGPT for violation of post import condition of no sale. - demand of duty from the purchaser of car - This is a case where an imported car has been confiscated twice. The second confiscation arose because DRI found that the year of manufacture of the car was rnis-declared. - Held that - duty cannot be demanded from the owner because the details of import are established and the importer is known and duty was correctly demanded from the importer in the Show Cause Notice. Whether with the passing of first adjudication order by the Asstt. Commissioner, the principle of res-judicata will apply and prevent the second adjudication of the case. The first purchaser was not even issued a show cause notice. The appellant who is the second purchaser, bought the car from the first purchaser i.e. M/s. HFCL after a year or so, was not at all aware of the mischief played by the importer. His bonafides are confirmed by the Commissioner, who did not impose any penalty on him. But the Commissioner found an easy way out by saddling the second purchaser with duty and imposing a penalty on the importer to try and safeguard Revenue. However he has ignored the fact that legal provisions must be followed strictly. Order of the Commissioner is not sustainable in law. - Order of confiscation is set aside. Duty demand, redemption fine and penalty on appellant are also set aside. - Decided in favor of appellants.

Issues Involved:
1. Legality of the duty demand under Section 125(2) of the Customs Act, 1962.
2. Applicability of the principle of res judicata in the second adjudication.
3. Validity of the second confiscation and revaluation of the imported car.

Detailed Analysis:

1. Legality of the Duty Demand Under Section 125(2) of the Customs Act, 1962:

The primary issue was whether the adjudicating authority could confirm the duty demand against the present owner (appellant) under Section 125(2) of the Customs Act, 1962, despite the show cause notice demanding duty from the importer under Section 28. The law mandates that duty is payable by the importer as per Sections 46 and 47 of the Customs Act. The term 'Importer' under Section 2(26) includes any owner or person holding himself out to be the importer between the time of importation and clearance for home consumption. The appellant was not the importer; hence, duty cannot be demanded from him under Section 28.

The adjudicating authority's reliance on the case of J.K. Steel Vs. Union of India was found misplaced as the facts differed significantly. The principle established in Commissioner of Customs (Import), Bombay versus VXL India Ltd. was emphasized, confirming that duty must be demanded from the original importer, and Section 125(2) cannot substitute for Section 28. The decision in Tata Infotech Ltd vs Commissioner also supported this view, stating that Section 125(2) applies only when the legal importation details are unknown.

2. Applicability of the Principle of Res Judicata in the Second Adjudication:

The second issue was whether the principle of res judicata applied, preventing the second adjudication. The appellant relied on the Supreme Court judgment in Mohan Meakin Ltd., which held that once goods are released on payment of redemption fine, initiating another proceeding on the same issue is impermissible. The initial adjudicating authority's failure to make proper inquiries about the car's manufacture year and value does not justify reopening the case with new evidence.

The judgment in Mohan Meakin Ltd. was found applicable, indicating that the first adjudicating authority's order, which did not impose any penalty on the appellant, should stand. The Commissioner's attempt to distinguish this case by relying on Union of India Versus R.C. Fabrics (P) Ltd. was invalid as the latter did not reference Mohan Meakin Ltd., which remains good law.

3. Validity of the Second Confiscation and Revaluation of the Imported Car:

The third issue was the validity of the second confiscation and revaluation of the car. The second confiscation arose due to the mis-declaration of the car's year of manufacture. However, the initial adjudicating authority had already examined and passed an order based on the available evidence. The failure to conduct adequate inquiries initially does not permit reopening the case solely on the basis of new evidence regarding the car's true manufacture year and price.

The Commissioner's reliance on the case of R.C. Fabrics Pvt. Ltd. was found misplaced as the facts differed. The judgment in Mohan Meakin Ltd. was reiterated, emphasizing that the first adjudicating authority's order should not be re-opened on the same issue of valuation. The Karnataka High Court's decision in Commissioner of Customs, Bangalore Vs. Five Star Shipping Co. Ltd. further supported this view.

Conclusion:

The Tribunal held that the order of the Commissioner was not sustainable in law. The appeal was allowed, setting aside the order of confiscation, duty demand, redemption fine, and penalty on the appellant. The principle of res judicata applied, preventing the second adjudication, and the duty could not be demanded from the appellant under Section 125(2) when the importer was known and duty was initially demanded from him.

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