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TMI Blog2014 (12) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... r car which were imported around the same time by individuals as in the present case. These details were also given to the appellant vide demand notice and he has not questioned the correctness of the same. We also note that the department has given depreciation for the period 10-11-2007 to 16-7-2008. The department has also decreased the value due to the fact that the impugned car was with 6-speed manual transmission system while in the two invoices it was R-Tronic transmission. - there is no such claim by the appellant that due to some extraordinary reasons they were able to get the car at a cheaper price. - Decided against the assessee. Old car or New Car - Held that:- DRI approached the local dealers to find out certain details. They informed that the car was manufactured on 10-11-2007 in Neckarsulam, Germany and the car was registered first time on 7-12-2007 in UK. It was also indicated that the said car was repaired on 7-12-2007 on a customer complaint relating to “Q/S/F, window goes up and then drops back down”. At that time it has run 1030 kms. The date of shipment from Felixstowe was on 16-7-2008. We do not see any reason to discard the said details and M/s. Audi Mumb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that based upon a specific intelligence, Directorate of Revenue Intelligence initiated investigation in September, 2008, in to fraudulent imports of high end cars/SUVs. It was collected that one person with name Mr. Rehman Shaikh (Appellant No. 2) was involved in smuggling racket, accordingly, his office and residential premises were searched and incriminating documents were recovered. It was found that he was involved in fraudulent import of 36 vehicles in the name of third parties. The vehicles imported were generally used vehicles and were declared as new vehicles at the time of clearance from the Customs. One of the vehicles so imported was a New Audi R8 4.2 coupe . The said vehicle was imported in the name of Appellant No. 1. Copy of Passport of Appellant No. 1, invoice, Bill of Lading, type Approval Certificate, PAN card, etc. were recovered. The Bill of Entry No. 963210, dated 18-8-2008 was filed. The Custom House ordered for first check examination. The value declared in the Bill of Entry for the said vehicle was GBP 42,000/-. The initial investigation indicated that both the value as also the condition of the vehicle i.e. new instead of old were misdeclared and Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cars are freely importable and only prohibited goods can be confiscated absolutely. According to the ld. Advocate the list of prohibited goods is specifically given in the Import Policy and cars are not falling under the said list. He also relied upon the judgment in the case of Yakub Ibrahim Yusuf v. CC, Mumbai - 2011 (263) E.L.T. 685 (Tri.-Mumbai) relating to confiscation. The appellant also stated that it is incorrect to consider the import as non bona fide import as the Bill of Entry is filed in his name as the owner of the goods. No other person is claiming the ownership of the car and therefore, there is no reason to doubt the ownership. Ld. Advocate also argued that Appellant No. 2 was an authorized Customs House Agent earlier and he used to take responsibility to handle customs related activity. When the appellant No. 1 imported the cars, he took the help of the Appellant No. 2 and Appellant No. 2 cannot be held as the owner of the vehicle. Ld. Advocate further stated that the department (in the Writ Petition No. 2426 of 2012 filed before the Hon ble Mumbai High Court) stated that disposal order for the said car has been given. Ld. Advocate also stated that he did not objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only lent his name to the Appellant No. 2 for monetary consideration. The ld. A.R. further stated that after issuance of show cause notice and before the adjudicating authority Appellant No. 1 changed his position and started claiming that the vehicle belongs to him but he did not give the supporting evidence. Since initially he has disowned the car and the statement has not been retracted, he cannot be considered as the owner of the car. Ld. A.R. also stated that the value taken by the department is based upon the contemporary imports of similar cars around the same time by individual passengers. Department has also given depreciation benefit keeping in view the date of manufacture and date of import. Even for different transmission system, the department has already reduced the value, therefore, the value arrived is correct. He also stated that undervaluation is very clearly established for the reason that the invoice produced does not pertain to the under consideration car. Learned A.R. also argued that the information was obtained from Audi dealers in Mumbai. They have supplied the information that was available with them and they were not in a position to give number of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due to the fact that the impugned car was with 6-speed manual transmission system while in the two invoices it was R-Tronic transmission. In view of the above position, we uphold the value and reject the appellant s contention. The appellant has also stated that in the impugned order the adjudicating authority has not taken into account the Hon ble Supreme Court s decision in the case of M/s. Eicher Tractors Ltd. We have gone through the said judgment. The facts of that case are entirely different. In the said case, certain parts, viz. bearings were being imported from a vendor abroad and at some point of time the import of the same was stopped and local purchase was started with the result, the vendor had huge stock and was forced to sell it at a discounted price. In view of this, the Hon ble Supreme Court has directed to accept the transaction value. In the present case, there is no such claim by the appellant that due to some extraordinary reasons they were able to get the car at a cheaper price. We, therefore, reject the said contention. We uphold the valuation adopted in the impugned order. 8. The next issue taken up by the appellant is that the car is new and not used one. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon. (2) Where any fine in lieu of confiscation of goods is imposed under sub-section (1), the owner of such goods or the person referred to in sub-section (1), shall, in addition, be liable to any duty and charges payable in respect of such goods. A reading of the said Section indicates that the adjudicating authority is required to give option to the owner of the goods or where such owner is not known to the person from whose possession or custody such goods have been seized. The only exception to the said position is in case of prohibited goods under the Customs Act or any other law, for the time being in force. It is true that the cars can be imported. However, these are not freely importable but there are policy conditions for the import of such vehicles. We find that the ld. adjudicating authority has not gone into the details and not given any finding whether or not the car imported can be considered as prohibited. In these circumstances, we find force in the argument of the Appellant No. 1 regarding absolute confiscation. We, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfiscated and thereafter sold during the pendency of appeal. In the appeal, appellate authority allowed reshipment subject to payment of redemption fine and penalty. Since the gold had already been sold, Hon ble High Court directed to return the sale proceeds subject to deduction of fine and penalty. It was also not brought to the notice of Hon ble Bombay High Court that as per Section 12 any goods imported are chargeable to customs duty. Gold was sold in India. The question from whom the custom duty will be recovered was unanswered. In the present case, car imported was if at all sold, was before the confiscation. In fact, appellant as per his own admission was given notice but he did not participate in the sale proceedings. Thus the application of sale proceedings will have to be as per Section 150 of the Customs Act, 1962. The car imported is chargeable to customs duty. The said customs duty has to go to Government Exchequer from the sale proceeds. In view of the said position, the ld. Adjudicating authority may first decide whether the car is available and whether the car is required to be redeemed on payment of redemption fine. Depending upon the factual position, the sale pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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