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TMI Blog2015 (1) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... from manufacturer in case it is lost. In fact this Tribunal did ask the appellant if he has got the invoice or can obtain the same from his brother supplier and matter adjourned. Vehicle is new as is evident from the odometer reading. The fact that the vehicle was registered prior to importation is only for the purpose of completing the formalities in that country. We also note that C.B.E. & C. Circular 1/2005-Cus., dated 11-1-2005 clarifies that when the registration in the country of export is done with a view to export the same that should not be come in way of extending the benefit of Notification No. 21/2002. In the present case also the registration has been done only with a view to transfer the vehicle to the port of export. We accordingly hold that the appellant will be eligible for the benefit of Notification No. 21/2002. Thus valuation and confiscation is upheld. Redemption fine and penalty are not excessive. As for benefit of notification 21/2002 is concerned, the same would be available - Decided partly in favour of assessee. - C/595/2012-Mum - Final Order No. A/1191/2014-WZB/C-I(CSTB) - Dated:- 15-7-2014 - Shri Ashok Jindal, Member (J) and P.K. Jain, Member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 2.20 lakhs was also imposed under Section 112 of the Customs Act. Aggrieved by the said order the appellant is before us. 3. Heard both sides. 4. The appellant s main contention is that they are interested in re-exporting the vehicle but in view of detention and demurrage charges, are not able to re-export the car. The learned Advocate for the appellant disputed the valuation done by the department and hence confiscation under Section 111(m) of the Customs Act as also the denial of benefit of Notification No. 21/2002 (Sl. No. 344). The main contention of the learned Advocate was that similar goods may have been imported by the dealer of the manufacturer in India and the value at which such dealer are importing the car would be available with the department and the department should take that value for the assessment purpose. The second contention of the learned Advocate is that in the alternative Custom should follow the Board s instructions relating to the valuation of the car. The learned Advocate also argued that there is no evidence about the authenticity of the invoice produced by the department. The department has not disclosed the source of the said invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k by importer or transactions are between two individuals. In such circumstances, the C.B.E. C. s guidelines are used and the value so arrived is compared with the invoice or the declared value and in case the invoice or declared value is less than as per the guidelines, cars are assessed as per these guidelines. In the present case, the original price at which the brother of the appellant and supplier has purchased the car is already available. The copy of the said invoice was given to DRI officials by their source (the informer). Further, the invoice and details therein has been confirmed by the manufacturer of the vehicle. Original of such invoice will be available with the supplier i.e. brother of the appellant. In any case, the appellant and the supplier are related persons and there was no reason for the appellant not to produce the original invoice. Even when the goods were seized, the appellant could have produced the original invoice and other payment particulars to put the matter to rest. 5.1 As far as benefit of Notification No. 21/2002 is concerned, the learned A.R. drew our attention to in para 10.2(b) in the order dated 12-4-2010 which discussed in detail that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the goods when sold for export to India for delivery at the time and place of importation, or as the case may be, for export from India for delivery at the time and place of exportation, where the buyer and seller of the goods are not related and price is the sole consideration for the sale subject to such other conditions as may be specified in the rules made in this behalf : Provided that such transaction value in the case of imported goods shall include, in addition to the price as aforesaid, any amount paid or payable for costs and services, including commissions and brokerage, engineering, design work, royalties and licence fees, costs of transportation to the place of importation, insurance, loading, unloading and handling charges to the extent and in the manner specified in the rules made in this behalf : Provided further that the rules made in this behalf may provide for,- (i) the circumstances in which the buyer and the seller shall be deemed to be related; (ii) the manner of determination of value in respect of goods when there is no sale, or the buyer and the seller are related, or price is not the sole consideration for the sale or in any other case; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same family. Explanation I. - The term person also includes legal persons. Explanation II. - Persons who are associated in the business of one another in that one is the sole agent or sole distributor or sole concessionaire, howsoever described, of the other shall be deemed to be related for the purpose of these rules, if they fall within the criteria of this sub-rule. 6.2 We find that the Clause (viii) covers the members of the family as related persons. Thus the supplier and the appellant are related persons. In the present case, both supplier and importer in fact are one and same in view of financial flow indicated in para 11 of show cause notice. Further, Rule 3(3) of the said Valuation Rules deals with how to determine the value in case of related persons. The said Rule is as under :- 3. Determination of the method of valuation. - (1) Subject to Rule 12, the value of imported goods shall be the transaction value adjusted in accordance with provisions of rule 10; (b) In a sale between related persons, the transaction value shall be accepted, whenever the importer demonstrates that the declared value of the goods being valued, closely approximates to one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alue so assessed, facts and circumstances indicate that appellant has intentionally under-declared or misdeclared the value and provisions of Section 111(m) of the Customs Act are attracted. The car would be liable for confiscation under the Section 111(m) of the Customs Act, 1962. We therefore uphold the said decision in the impugned order. 6.4 As far as the benefit of Notification 21/2002 is concerned, the relevant entry be read as under - 344. 8703 Motor cars and other motor vehicles principally designed for the transport of persons (other than those of heading 87.02), including station wagons and racing cars, new, which have not been registered anywhere prior to importation, - (1) If imported as completely knocked down (CKD) unit (2) If imported in any other form 6.5 In the present case we find that during examination the reading of odometer was found at zero which indicates that the car is new one. The department s contention for denying the benefit is based upon the registration. The vehicle was registered with DVLA office in Edinburgh at U.K. The findings of the learned Commissioner in the order dated 12-4-2010 in this respect are as under :- (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. We have gone through the said judgement. We find in the said case the value declared by assessee was not accepted and higher value has been adopted on the basis of thorough enquiry and study of comparable goods imported by others and no incriminating evidence was found nor any duplicate invoices or suppression of invoices involved. Under the said circumstances, this Tribunal has taken the view that confiscation of goods under Section 111 is not appropriate. In the present case, the appellant s brother has purchased the car just few weeks before dispatching to India. Therefore, it was necessary of the appellant to produce the original invoice and to declare the value accordingly. In the present case there is clear-cut suppression of the original invoice and hence the mis-declaration in the value. We find that the situation is squarely covered under Section 111(m) of the Customs Act and the confiscation is in order. 6.9 The other case law quoted by the learned Advocate for the appellant is that of Hon ble High Court in the case of CC (Import) v. Noshire Moody (supra). We have gone through the said judgement of the Hon ble Bombay High Court. In the said case the Hon ble High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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