2020 (9) TMI 1039 - HC - Customs

Import of Vehicle or not - whether bringing of a vehicle by the petitioner under Ext.P1 can be termed as import of a vehicle and even if it cannot be strictly termed as import, is the petitioner eligible to import the said vehicle paying customs duty and availing depreciation benefits in respect of the vehicle? - HELD THAT - The Customs Act provides for an appellate mechanism to decide such issues. The petitioner has not availed the same. Therefore, it is only just and proper that the petitioner is relegated to appellate remedy available under the Customs Act at the first instance. The writ petition is disposed of permitting the petitioner to prefer an appeal against Ext.P4 before the Commissioner (Appeals) under Section 128 of the Customs Act, within a period of two weeks, along with a petition to condone the delay - Petition disposed off.

Summary

Issues:
1. Interpretation of whether bringing a vehicle under a temporary privilege can be considered as an import.
2. Eligibility of the petitioner to pay customs duty and avail depreciation benefits for the imported vehicle.
3. Whether the petitioner should have availed the appellate mechanism under the Customs Act before filing the writ petition.

Issue 1: Interpretation of Import:
The petitioner imported a vehicle under a temporary privilege, seeking a direction to calculate customs duty as per Circular Ext.P5. The respondents argued that bringing the vehicle under the privilege does not constitute import, as it was temporary and the vehicle was surrendered after the period. The Standing Counsel contended that a used vehicle older than three years cannot be imported unless customs duty is paid as per government policies and Circulars.

Issue 2: Customs Duty and Depreciation Benefits:
The petitioner claimed that the demanded customs duty of &8377;36,28,397 was excessive as the vehicle was not new and should be subject to depreciation benefits per Circular Ext.P5. The respondents maintained that even if the vehicle was not older than three years, customs duty should be paid according to import policies and Circulars, rejecting the petitioner's plea.

Issue 3: Appellate Remedy under Customs Act:
The judgment highlighted that the issues raised were mixed questions of law and facts, suggesting the availability of an appellate mechanism under the Customs Act for such matters. The petitioner was directed to appeal against the customs duty demand before the Commissioner (Appeals) within two weeks, with a petition to condone any delay. It was emphasized that coercive actions should not be taken until the appeal is decided.

The judgment concluded by disposing of the writ petition, advising the petitioner to pursue the appellate remedy available under the Customs Act for a final decision on the customs duty issue.