9911796707
TMI Blog2005 (8) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... granted to Aboo Backer Kunhi Karivalam (hereinafter referred to as the respondent) in terms of Final Order No. 51/2004-Cus., dated 11-10-2004 of the Settlement Commission. 2. The facts of the case are covered in full detail in the Final Order dated 11-10-2004 (supra). The facts relevant for this order are that the respondent had misdeclared the correct Model and Year of manufacture of the car imported under the Transfer of Residence Rules with an intent to evade customs duty by means of undervaluation. According to the Revenue the year of manufacture of the car was 2002. 3. A Show Cause Notice was issued to the respondent on 21-4-2004 by the Dy. Commissioner of Customs (Import) proposing modification in year of manufacture, enha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. Commissioner, SIIB Imports from the Office of the Commissioner of Customs (Import), Mumbai assisted by Shri A.G. More, Superintendent. The respondent was represented by Shri M.H. Patil, Advocate. S/Shri D.H. Nadkarni, M. Fernandes and Ms. Aparna H. Advocates were also present. 6. The representative of the Revenue submitted that in the light of Final Order dated 11-10-2004 of the Settlement Commission, the Commissioner (Import) reviewed the file and sought relevant details from M/s. Toyota Motor Corporation, Japan for verification of the particulars of the said car. As per the said verification report dated 7-12-2004 the authenticated month and year of manufacture of the said car is 31st January 2003. Hence it was prayed that immuni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given in the Review Application by the Revenue as to what is the need for further investigation once the Final Order has been passed by the Settlement Commission and earlier investigations had been already finalized by the Revenue. (iii) Following case laws were also relied upon - (a) Chawla Enterprises Ltd. v. Commissioner of Customs (ACC), New Delhi reported in 2004 (175) E.L.T. 61 (Delhi) holding that High Court is concerned with only the illegality of the procedure followed and not the validity of the order i.e. Judicial Review is concerned not with the decisions but the decision making process. This also took into account the provisions of Section 127J which states that every order passed under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fine. In the present case it is clear that the Revenue is seeking to cover up its error/mistakes in the previous investigation which had been completed. (c) SESU International v. Commissioner of Customs, Sheva reported in 2003 (159) E.L.T. 161 (Tri-Mumbai) holding that Revenue could not take advantage of its own wrong. In the present case this is exactly what Revenue is seeking to achieve by way of filing Review Application. 8. The Bench has gone through the submissions made by the Revenue and the respondent. As the direction given on 10-3-2005 to produce the original report dated 7-12-2004 had not been complied with till 4-4-2005 the Secretariat directed the Revenue to submit a duly authenticated copy of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Applicant as per the foregoing Para No. 8." No reason is given for the "Review". It is amply clear that Revenue's sole intention was to find ways and means not to implement the Commission's Final Order dated 11-10-2004 and is seeking to improve on its "investigations" and "enquiries" which lead to the issue of the Show Cause Notice dated 21-4-2004. This can neither be allowed nor permitted, specially looking to the belligerent stand taken by Revenue not to implement the Final Order dated 11-10-2004. This too in the face of the statutory provision of Section 127J of the Act which states that the Final Orders passed under Section 127C of the Act are conclusive and final. The various case laws relied upon by the respondent are very relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. TKM/IMPEX/SIIB-01/04 stating that the subject Vehicle was produced on 26-12-2002 and was sold to a customer in Japan. Further, a letter dated April 7, 2004 was received from Mr. C.N. Hebbar, General Manager, Imports & Exports Div., M/s. Toyota Kirloskar Motor confirming the aforementioned facts. Since M/s. Toyota Kirloskar Motor Pvt. Ltd., are authorized distributors of Toyota vehicles in India, the authenticity of their communication is beyond doubt."(Emphasis supplied). 12. In the Show Cause Notice dated 21-4-2004 the Revenue has relied upon the aforesaid letter dated 23-2-2004 to hold that the correct year of manufacture of the car was December 2002. In the Review Application the Revenue has sought to rely on fresh evidence col ..... X X X X Extracts X X X X X X X X Extracts X X X X
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