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TMI Blog1991 (10) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... automatic brake lock and automatic transmission were there but the stearing grip was stolen by somebody on its way. He has pleaded that he does not claim the benefit of the notification though the control stearing grip which was imported later was duly shown to the Collector (Appeals). Shri Ramanathan drew the attention of the Bench to the invoice which appears at page 17 of the paper book and has pleaded that as per invoice the value declared was US $ 5,000.00 C.I.F. and this value was invariably accepted by the Revenue authorities in all the similar cases imported by different disabled persons. Shri Ramanathan has pleaded that in the present matter the value adopted by the adjudicating authority was based on the world car catalogue price at Rs. 97,857/- after deduction of taxes of VAT and 15% trade discount. Shri Ramanathan has pleaded that the value in terms of world car catalogue price is correct but in the present matter the value should have been accepted at US $ 5,000.00 as declared, otherwise it will amount to discrimination for the present appellant. Coming to the imposition of the sustained penalty of Rs. 5,000/-, Shri Ramanathan has pleaded that there is a legal infirmi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be extended and also there is violation of I.T.C. Regulations by the appellant. He also has pleaded that the appellant could have imported the car up to a value of Rs. 65,000/-, whereas the value of the car imported was Rs. 97,857/-, the value which has to be adopted in terms of provisions of Section 14 of the Customs Act, 1962. Shri Ram Parkash has also stated that the Collector (Appeals) had given sufficient relief to the appellant and further relief is called for and prayed for the rejection of the appeal. 3. Shri Ramanathan, in reply, has again pleaded that in the complete absence of element of mens rea, there is no justification for enhancing the value, sustaining of redemption fine of Rs One Lakh and penalty of Rs. 5000/-. He pleaded for the acceptance of the appeal. 4. We have beared both the sides and gone through the facts and circumstances of the case. Coming to the valuation aspect, we would like to observe that this Tribunal has taken a persistent view that value to be adopted for the imported cars is to be the world car catalogue price less 15% trade discount. The Tribunal in the case of B.J. Singh v. Collector of Customs reported in 1990 (45) E.L.T. 474 (T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther 15% discount on the already net wholesale price. 15% discount was given on the retailers list price. We have had the benefit of experience of dealing with a larger number of cases of valuation and assessment of imported cars. It is well within our knowledge that the general practice of the Customs department is to base the valuation on the World Car Catalogue Price and give 15% discount thereon. The idea is to get at the price at which the like goods are ordinarily sold in wholesale in the course of international trade, as required by Section 14 (1) (a) of the Customs Act, 1962. Resort is had to the individual invoice prices of the passengers only if the world car catalogue price of the model is not available. We order that the same basis should be followed in the case of the present appellant also and his car re-assessed on the basis of the World Car Catalogue Price or the same model less 15% discount. On our asking, the appellant was not in a position to show us the World Car Catalogue Price but he maintained that the said price was available with the Custom House. In case the World Car Catalogue Price is not available with the Custom House, the customs may ascertain the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities are directed to give consequential effect to this order . 6. During the course of arguments, Shri Ramanathan had fairly stated that the value adopted by the Revenue authorities was the World Car Catalogue price less admissible discounts. In view of the above discussion, we do not find any infirmity in the order passed by the lower authorities on the valuation aspect. Coming on the sustained penalty of Rs. 5,000/-, we would like to reproduce the operative part of the order passed by the Deputy Collector :- I, therefore, in exercise of the powers conferred upon me under Section 122 of the Customs Act, 1962 order that the goods in question shall be confiscated under Section 111(d) (m) of the Customs Act, 1962, as the car has been misdeclared to be fitted with disability controls. I, however, give the importers an option under Section 125 of the Customs Act, 1962, to pay in lieu of such confiscation a fine of Rs. 1,94,000/- (Rupees one lakh ninety four thousand only) and clear the goods into town. I also impose a penalty of Rs. 20,000/- (Rupees twenty thousand only) on the importer under Section 112 of the Customs Act, 1962. I further deny the benefit of the ad hoc ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the value thereof or one thousand rupees, whichever is the greater; (iv) in the case of goods falling both under Cls. (i) and (iii), to a penalty not exceeding five times the value of the goods or five times the difference between the declared value and the value thereof or one thousand rupees, whichever is the highest; (v) in the case of goods falling both under CIs. (ii) and (iii), to a penalty not exceeding five times of the difference between the declared value and the value thereof or one thousand rupees, whichever is the highest". A simple perusal of a Section 11(a) and (b) shows that offences under Section 112(a) and (b) are different. On the appellant a penalty of Rs.10,000.00 has been imposed, which is the subject matter of the appeal before us. Hon ble Madras High Court in the case of B. Lakshmichand v. Government of India reported in 1983 (12) E.L.T. 322 (Mad.) had held that the charges against the accused should be clear and not ambiguous. Para No. 2 from the said judgment is reproduced below; 2. Mr. K.C. Rajappa, learned Counsel for the petitioner made an attempt to canvass the merits of the case; but ultimately and rightly was content to make a legal submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused in these circumstances. Clause (a) of S.112 of the Act contemplates the doing of an act or omitting to do an act in relation to any goods, which act or omission would render such goods liable to confiscation under Section 111, or abetting the doing or omission of such an act. Clause (b) of Section 112 of the Act lays down that any person who acquires possession of or is in any way concerned in carrying, removing, depositing, harboring, keeping or concealing, selling or purchasing, or is any other manner dealing with any goods which he knows or has reason to believe or liable to confiscation under Section 111, shall be liable to penalty as per the clauses set out. Section 112(b) of the Act would be attracted only if the person has been concerned in the offence of importation or exportation of goods which are, for the time being, prohibited or restricted. If that clause is attracted, there should be specific reference to it in the proceedings initiated and the findings rendered, and if there is a failure to do so, the order of penalty cannot be sustained. When the penal provisions are invoked and proceedings are prosecuted for the purpose of imposition of penalty, the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d been given, it would certainly not have been binding on the Government, because its powers of resumption are regulated by the statute, and must be exercised in accordance with its provisions. The Act confers no authority on the Government to grant exemption from resumption, and an undertaking not to resume will be invalid, and there can be estoppel against a statute". In the matter before me, the appellant had waived the issue of the show cause notice. In the case of Collector of Customs and Central Excise, Chandigarh and Another v. Ajit Singh and Another reported in 1987 (32) E.L.T. 769(Tribunal) in para No. 12 it has been mentioned that: Coming now to the imposition of penalty, we observe that in the order appealed against, the Additional Collector has failed to mention specifically the clause of Section 112 under which orders are passed . In the matter before me also, the Assistant Collector has passed the orders as under :- In the result, goods and currency seized from him is ordered to be confiscated absolutely. In view of the consideration urged and the fact that he has been penalised by the court, I take a lenient view and impose on him a nominal penalty of Rs. 10,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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