9911796707
TMI Blog1994 (11) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... previous permission of the Directorate of Revenue Intelligence, Zonal Unit, Construction House, 1st Floor, Walchand Hirachand Marg, Ballard Estate, Bombay - 400 038. The detention memo further states that on enquiries made by the Directorate of Revenue Intelligence, it was found that the said car was imported and cleared through the Customs by mis-declaring the Cubic Capacity at 1595 and paying Customs duty at the rate of 100% + 45% + CVD 35% + 1/8% M.V. Cess, whereas the correct Cubic Capacity of the car was 1781/1800 and Customs duty leviable was at the rate of 150% + 45% + CVD 35% + 1/8% M.V. Cess and that since the appropriate amount of Customs duty had not been paid on the said car, the said car was liable to be confiscated under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lkaswagon agent M/s. Ashiya Motors, Bombay and that he does not know the registration number. It was only from the undertaking given by the petitioner, after service of detention memo, the Department came to know that the registration number of Audi car was MH-01-575; that the importer in his statement dated 27-12-1989 stated that he imported the car for a profit of Rs. 80,000/- and given blank signed papers to M/s. Ashiya Motors, the agent of M/s. Volkaswagon, West Germany; that all the work pertaining to the car, payment of Customs duty, clearance charges and other charges emanating for the clearance of registration was done by M/s. Ashiya Motors, Bombay; that the vehicle in question was cleared through the Customs by suppressing its corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of car accordingly works out to DM 24,200 C F; that the said payment was in addition to the amount of DM 25,262/- which was paid initially on behalf of Sri Lawrence G. Karkoda; that the total amount paid towards the Audi 80 car in question works out to DM 49,462/- C F (i.e. DM 25,262/- plus DM 24,200/- equivalent to Rs. 4,20,238/-) (DM 11.77 = Rs. 100/- exchange rate as per the bill of entry) and not Rs. 1,59,705/- equivalent to DM 18,608.18 C F plus Rs. 1,707/-. The fact of extra payment of DM 24,200/- in respect of the said Audi car and the relationship of M/s. Ashiya Motors, Bombay with M/s. Futehally Ltd., Osaka, Japan, who had made the said extra payment were not declared to the customs at the time of clearance of the said Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rities have assessed the duty under Section 17 of the Act and pursuant to which the duty was paid and, therefore, the order of assessment has become final and proper Officer having satisfied that the goods entered for home consumption are not prohibited goods and the importer had paid the import duty, permitted clearance of the goods for home consumption. Therefore, the authorities have no power to detain the car in exercise of the power under Section 110 of the Customs Act. The only remedy that is available to the department, assuming that there was any mis-declaration, is to initiate proceedings under Section 28 for short-levy or non-levy of duty either under Clause 1 or in the alternative, to take recourse to the procedure contemplated u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ledge that the goods are lible for confiscation. 8. Counsel also submits that the expression `such person in Section 124 of the Act should be read in conjunction with Section 111(m) of the Act. In other words, `such person means the owner or importer who is responsible for the mis-declaration or mis-description of the goods imported and does not include a bona fide purchaser. 9. We have already referred to the contents of the counter-affidavit, according to which, the reason for the detention order is on account of the supression of correct Cubic Capacity which resulted in the evasion of Customs duty. It is not disputed by the respondents that the original importer filed the bill of entry and the goods were assessed under Section 17 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porter has paid the relevant duty assessed and the goods are not prohibited. When once the order under Section 47 of the Act has become final, the only remedy available either for short-levy or non-levy of the duty on account of the suppression of fact is by taking recourse to Section 28 of the Customs Act within six months from the relevant date in the normal circumstances and in cases where the short-levy or non-levy is by reason of collusion or wilful mis-statement or suppression of fact by the importer within five years from the relevant date of the Collector of Customs. In the alternative to initiate proceedings under Section 129DA. 10. Since the notice under Section 124(a) of the Act was not issued within six months of the detention ..... X X X X Extracts X X X X X X X X Extracts X X X X
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