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TMI Blog2019 (5) TMI 925X X X X Extracts X X X X X X X X Extracts X X X X ..... rst time in appeal without the same being subject matter of adjudication proceedings or in appellate proceedings before the Commissioner (Appeal). In case revenue was aggrieved by adjudicating authority not proposing to add such charge to arrive at the assessable value, the correct course would have been to file appeal or cross objections before the Commissioner (Appeal). Since revenue has proceeded not to file any appeal/ cross objections before the Commissioner (Appeal) they could not have taken this ground for first time while filing the appeal before this tribunal. Quantum of redemption fine and penalty - HELD THAT:- The proposed enhancement of redemption fine without determining the market value of goods and the duty payable cannot be sustained. Appeal disposed off. - Appeal No. C/38/2010 - A/85795/2019 - Dated:- 24-1-2019 - Dr. D.M. Misra, Member (Judicial) And Mr. Sanjiv Srivastava, Member (Technical) Ms. P. Vinita Sekhar, Authorised Representative for the Appellant Shri Brijesh Pathak, Advocate for the Respondent ORDER PER: SANJIV SRIVASTAVA This appeal filed by the rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scription and value and was also imported in contravention of the provisions and restrictions imposed by Policy Circular No 26 date 09.02.2004 in as much as the agency issuing the Certificate of Compliance is not amongst the ones specified. Thus in view of the misdeclaration made the revenue was of the view that goods are liable for confiscation under section 111(m) and importer (Respondent)liable for penalty under Section 112(a) of Customs Act, 1962. 2.3 Respondent waived the requirement of written show cause notice and matter was adjudicated by the Additional Commissioner after allowing personal hearing to the appellants as per the order referred in para 1.2, supra. 2.4 Aggrieved by the order of adjudicating authority Respondents preferred an appeal before Commissioner (Appeal). The appeal filed was disposed by the Commissioner (Appeal) as per his order referred in para 1, supra. 2.5 Aggrieved by the order of Commissioner (Appeals) revenue has filed this appeal. 2.6 Along with the appeal, revenue filed a stay application seeking stay on the order of Commissioner (Appeal). The stay application filed by the revenue was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be found from the NIDB data and as the market value cannot be obtained from the market for new vehicle, rule 4 to 7 could not invoked. One of the authentic sources for ascertaining value of motor vehicle is red book, which contains the values of motor vehicle applicable in the international market. As per Red Book Catalogue ( www.redbook asiapacific.com) the price of Harely Davidson VRSCAW V-rod Model New is USD 29500. In the circumstances this being the best tool, value was redetermined using the information as provided in the said website. Commissioner (Appeals) ignored these findings and accepted importer s submission that currency was wrongly taken by Customs as USD instead of Australian Dollar; however, Commissioner (Appeals) in this regard has discussed no evidence. On the other hand, Commissioner (Appeals) accepted the declared value, without discussing on merit as regards acceptance of value. It is stated in Order-in-Appeal that appellant had produced Website details of manufacture. However no such details were made available by the importer during assessment or adjudication. Further the relevant facts like year of manufacturing, contemporary imports have also not been dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Australian $. Moreover, freight is taken at 20% of FOB value instead of asking for average Freight for motorcycle, if shipped from U.K. to India or actual freight paid. Thus, the reason for rejecting transaction value and the manner of calculation of revised value is erroneous. 7. The appellant has also produced web-site details of the manufacturer, which shows UK retail price of the said Bike as GBP 12075, being without ABS. Applying Trade Discount of 15% the price in GBP would come to GBP 10,263/- as against Manufacturer s Invoice of GBP 10,250. The Manufacturer s Invoice at Ex-D of appeal shows an endorsement Document contains the terms of contract. Sign if only wish to be legally bound by them. Attention is drawn to the terms and conditions printed overleaf and in particular to clauses which relate to acceptance of any Part Exchange Vehicle In view of the above endorsement, the appellant s contention vide letter dated 15.6.2009 that as per UK norms a computer generated Invoice is considered as an Actual Invoice without Stamp and Signature, is found correct. The contention that COC is of later date would not affect the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall in addition be liable to any duty and charges payable in respect of such goods . A reading of sub-sections (1) and (2) of Section 125 together makes it clear that liability to pay duty arises under subsection (2) in addition to the fine under sub-section (1). Therefore, where an order is passed for payment of customs duty along with an order of imposition of fine in lieu of confiscation of goods, it shall only be referable to sub-section (2) of Section 125 of the Customs Act. It would not attract Section 28(1) of the Customs Act which covers the cases of duty not levied, short levied or erroneously refunded etc. The order for payment of duty under Section 125 (2) would be an integral part of proceedings relating to confiscation and consequential orders thereon, on the ground as in this case that the importer had violated the conditions of notification subject to which exemption of goods was granted, without attracting the provisions of Section 28(1) of the Customs Act. A reference may beneficially be made to a decision of this Court reported in Mohan Meakins Ltd. v. Commissioner of Central Excise, Kochi, 2000 (115) E.L.T. 3 (S.C.) = (2000) 1 SCC 462 wherein it has been obse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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