2018 (4) TMI 118 - AT - Customs

Smuggling - import of Honda Veradaro XL-1000 CC motorcycle having registration No.KL-40-D-6064 and Chassis No.VTMSD02C07E821804 - notified goods - time limitation - Held that - the vehicle was imported in 2008 and it was seized from the appellant in the year 2014. Therefore as per Section 28 of the Customs Act, the period within which the duty can be demanded is 5 years which has expired in the year 2013. Therefore, the demand proceeding against the appellant is not sustainable in law. The motor bike involved in the present case is not a notified goods and in the case of no notified goods, the burden is on the Department to produce evidence that the goods were illegally imported and not the person from whose possession such goods are seized. No doubt the Department has produced evidence in the present case that the said vehicle was imported under a forged Bill of Entry but the Department has not been able to establish that the appellant has forged the Bill of Entry in the name of Ganapathi Raman. The proceedings for confiscation of the vehicle after the limitation is unsustainable - appeal allowed - decided against Revenue.

Summary

Issues:
Appeal against confirmation of fine and penalty by Mr. Roshiban, and Department's appeal against dropping demand of duty.

Analysis:
1. The case involved two appeals against the same impugned order, one by Mr. Roshiban and the other by the Department. Mr. Roshiban appealed against the confirmation of fine and penalty, while the Department appealed against the dropping of the demand of duty. The Customs officers seized a motorcycle from Mr. Roshiban on the belief that it was smuggled into India. The appellant challenged the detention order, which was set aside by the High Court. The appellant argued that the vehicle was purchased legitimately, and the Department failed to prove illegal importation without payment of duty. The original authority ordered confiscation of the vehicle, imposing a fine and penalty. The Commissioner (Appeals) dropped the duty demand but upheld the fine and penalty, leading to the present appeals.

2. The appellant contended that the impugned order was contrary to statutory provisions and binding judicial precedent. He argued that the motorcycle did not fall under notified goods, placing the burden on the Department to prove illegal importation. He raised objections regarding jurisdiction, the limitation period for duty demand, and denial of cross-examination of the importer. The appellant claimed that penalty could not be imposed once duty demand was dropped, and there was no proof of aiding illegal importation.

3. The Department defended the impugned order, alleging that import documents were forged, and the appellant fabricated documents for registration. The Department disputed the appellant's claims and stated that the case law relied upon was inapplicable.

4. The Tribunal analyzed the submissions and evidence, concluding that the duty demand was unsustainable due to expiration of the limitation period. It noted that the appellant was not the importer, and the Department failed to establish illegal importation. Jurisdictional issues were raised, and the Tribunal cited Supreme Court precedents regarding penalty imposition. The contradictory statements of the importer were highlighted, emphasizing the lack of evidence against the appellant.

5. The Tribunal found the impugned order unsustainable in law and set it aside, allowing the appeal of Mr. Roshiban. Consequently, the Department's appeal demanding duty on the imported bike was dismissed. The Tribunal's decision was based on the lack of sustainable evidence, jurisdictional discrepancies, expiration of the limitation period, and the failure to prove the appellant's involvement in illegal importation.