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TMI Blog2015 (1) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary examination/verification done, which they failed to do. Even after the apex court decision, before allowing release of the vehicle, the said action could have been undertaken. This shows gross negligence and complete disregard on the part of the department to the directions given by this Tribunal. Thus the entire blame for the inaction lies squarely on the department. In the letter dated 19-11-2012, ARAI has not given any opinion on the seating capacity of the impugned vehicle. They have merely observed that the vehicle was originally designed for seating 5 persons. However, they advised the department to verify from the concerned vehicle manufacturer about the type approval certification issued from the country of origin for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... baran, Addl. Comm. (AR) JUDGEMENT Per: P.R. Chandrasekharan: 1. The appeal is directed against Order-in-Appeal No. 125/2012/CC(I)/JNCH dated 26/11/2012 passed by Commissioner of Customs (Import), JNCH, Nhava Sheva. In the impugned order the ld. Adjudicating authority has classified Chrysler 300C Sedan RHD car imported by the appellant M/s Mann Tourist Transport Service Pvt. Ltd., New Delhi, vide B/E No. 880348 dated 4-5-2009 under CTH 8703 23 99 for the purpose of assessment. Aggrieved of the same, the appellant is before us. 2. The brief facts relevant to the case are as follows. The appellant herein imported the above vehicle from M/s Paramount Auto Exports Inc., USA who is a dealer for Chrysler Vehicles and engaged in co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in expert opinion from competent agencies/authorities like ARAI and VRDE on the designed seating capacity of the vehicle and then proceed to determine its classification under the Tariff . 2.1 The said decision of this Tribunal was challenged by the Revenue by way of Civil Appeal No. 15014 of 2011 and the appeal was dismissed by the hon'ble apex court vide order dated 11/07/2011. Thereafter, the vehicle was released provisionally vide letter dated 19-4-2011 by the Customs authorities on execution of a bond for ₹ 54,62,939/- and a bank guarantee for ₹ 15 lakhs. The fine and penalty confirmed by this Tribunal was ordered to be paid. However, the department did not make any effort to get the vehicle examined by ARAI/VRDE and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The said authority has merely observed that the vehicle was originally designed for a seating capacity of 5 persons. However the design of the vehicle was modified/altered to increase the seating capacity to 12 persons. Thus when the vehicle was presented at the time of imports, it had a seating capacity of 12, meriting classification under CTH 8702. 3.2 Subsequent to the release of the vehicle, the appellant has got the vehicle registered with the Regional Transport Authorities at Delhi. The vehicle registration certificate dated 5-9-2011 issued by the RTO, Delhi, describes the seating capacity as 10. The certificate of fitness issued by the Transport Department of the Govt. of National Capital territory of Delhi also certifies the sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisional registration given. Reliance is placed on the decision of this Tribunal in the case of Mahindra Mahindra [2006 (197) ELT 341] wherein it was held that vehicles with a seating capacity of 10 persons or more merited classification under CETH 87.02 and not under CETH 87.03. The ratio of these decisions apply to the facts of the present case. Accordingly it is pleaded that the impugned order be set aside and the appeal allowed. 4. The ld. Addl. Commissioner (AR) appearing for the Revenue re-iterates the findings of the adjudicating authority. 5. We have carefully considered the submissions made by both the sides. 5.1 In the remand order dated 7-10-2010, this Tribunal had clearly directed the Revenue to get the vehicle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a well-settled position in law that imported goods have to be assessed to duty in the form in which they are presented. In the facts of the present case, the vehicle as imported has been presented with a seating capacity of 12. Further, the regional transport authorities at Delhi has registered the vehicle as having a seating capacity of 10. The certificate of fitness and the tourist permit for the vehicle issued by the RTO authorities at Delhi also confirm this fact. In this factual scenario, the decisions of the hon'ble High Court of Kerala in K. Jayachandran vs. Regional Transport Officer, Trichur Others in W.P. No. 28702 of 2007 and the decision of this Tribunal in the Mahindra Mahindra case (cited supra) become relevant and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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