2019 (5) TMI 925 - AT - Customs

Confiscation of Vehicle - Penalty u/s 112 (a) of CA - Harely Davidson VRSC CKD - benefit of N/N. 021/2002- Cus Sr No 345 (1) - Revenue was of the view that goods have been misdeclared in terms of description and value and was also imported in contravention of the provisions and restrictions imposed by Policy Circular No 26 date 09.02.2004 in as much as the agency issuing the Certificate of Compliance is not amongst the ones specified. HELD THAT - Commissioner (Appeal) has determined the value after discussing the evidences produced before him and has in a reasonable manner arrived at the conclusions drawn by him. Revenue has in their appeal not stated why the conclusions arrived by the Commissioner (Appeal) are incorrect or the why the evidences produced before him and relied upon by him cannot be considered. In absence of any averments in the appeal discarding the evidences relied upon by the Commissioner (Appeal) we do not find any merits in the submissions made by the revenue. The issue raised in the appeal by the revenue has been raised for first time in appeal without the same being subject matter of adjudication proceedings or in appellate proceedings before the Commissioner (Appeal). In case revenue was aggrieved by adjudicating authority not proposing to add such charge to arrive at the assessable value, the correct course would have been to file appeal or cross objections before the Commissioner (Appeal). Since revenue has proceeded not to file any appeal/ cross objections before the Commissioner (Appeal) they could not have taken this ground for first time while filing the appeal before this tribunal. Quantum of redemption fine and penalty - HELD THAT - The proposed enhancement of redemption fine without determining the market value of goods and the duty payable cannot be sustained. Appeal disposed off.

Summary

Issues Involved:
1. Valuation of imported goods.
2. Imposition and quantum of redemption fine and penalty.
3. Compliance with import regulations and misdeclaration.

Detailed Analysis:

1. Valuation of Imported Goods:
The primary issue revolves around the declared value of the imported Harley Davidson VRSC CKD. The adjudicating authority initially rejected the declared value of ?7,58,388.21 and re-determined it to ?14,68,175.73 under Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. The Commissioner (Appeal) later accepted the declared value, citing errors in the valuation method used by the Additional Commissioner. Specifically, the Additional Commissioner erroneously used the US dollar instead of the Australian dollar for price determination from the Red Book Catalogue. The Commissioner (Appeal) found the transaction value valid, supported by manufacturer’s invoices and web-site details, and thus accepted the declared value.

2. Imposition and Quantum of Redemption Fine and Penalty:
The adjudicating authority ordered the confiscation of the goods under Section 111(d) & (m) of the Customs Act, 1962, with an option for redemption on payment of a fine of ?12,00,000 and imposed a penalty of ?10,00,000 under Section 112(a). The Commissioner (Appeal) reduced the fine and penalty to ?50,000 each, citing the case of Rational Art Press [2007(215) ELT 522 (Tri. Mum)], which was upheld by the Bombay High Court. The Tribunal upheld this reduction, noting that the revenue failed to provide substantial reasons for increasing the fine and penalty. Additionally, the Tribunal referred to the Supreme Court’s decision in Jagdish Cancer & Research Center [2001 (132) ELT 257 (SC)], emphasizing the necessity of determining the market value and duty payable before imposing a fine.

3. Compliance with Import Regulations and Misdeclaration:
The revenue argued that the goods were misdeclared in terms of description and value, violating Policy Circular No 26 dated 09.02.2004, as the Certificate of Compliance was issued by an unauthorized agency. This misdeclaration led to the confiscation order. However, the respondent waived the requirement for a written show cause notice and the matter was adjudicated, leading to the appeal. The Tribunal found that the grounds raised by the revenue regarding valuation and compliance were not substantiated with sufficient evidence. Furthermore, the respondent’s counsel highlighted that the vehicle was not released despite the dismissal of the stay application, rendering the appeal infructuous as the respondent no longer intended to clear the goods for home consumption.

Conclusion:
The Tribunal dismissed the revenue’s appeal, affirming the Commissioner (Appeal)’s decision to accept the declared value and reduce the fine and penalty. The Tribunal emphasized the lack of substantial evidence from the revenue to challenge the Commissioner (Appeal)’s findings and noted the procedural lapses in raising new issues at the appellate stage. Consequently, the appeal was disposed of, reinforcing the importance of accurate valuation and adherence to procedural norms in customs adjudications.