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TMI Blog2024 (2) TMI 1270X X X X Extracts X X X X X X X X Extracts X X X X ..... H COURT] it was held that when registration is for the purpose of complying formalities it cannot be said that the car is used one. Thus, we are of the considered opinion that the allegation that the car is not new cannot be accepted. The appellant has produced copy of the GSO conformity certificate. The importer has opted to purchase the vehicle through the dealer in UAE. The vehicle also is said to have been registered in UAE. In such circumstances, merely because the said certificate shows the vehicle as right hand drive, which is the model used in India, it cannot be said that the appellant has not complied with policy conditions. In the present case, there is no evidence suggesting undervaluation especially when the value of the goods could be easily verified from website. The adjudicating authority has taken the view that since the vehicle imported is of right hand drive and the vehicles used in UAE are of left hand drive, the value cannot be accepted. We cannot endorse the said view. Further, the value of the goods imported into Australia cannot be taken as a comparable value for redetermining the assessable value of the goods since the value differs on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TANY 62000609, 4 doors, Right Hand Drive, Colour Black, Reading 121 km, Fuel, Petrol, Number of seats 8, since catalogue not submitted, other details Could not be verified 1.2 The adjudicating authority observed that, (i) the importer has not submitted Type Approval/COP by the listed agency country of manufacture hence has not complied as Rule 126 of Motor vehicle Rule 1989; (ii) Proof of compliance to conformity of Production (COP) as under rule 126A of the Central Motor Vehicles Rules, 1989. (iii) the vehicle is not new as it has been sold once before importation and cannot be considered as new vehicle as per import licensing note (2) (1) of Chapter 87 of ITC-HS. (Indian Trade Classification Harmonized System). That these amounted to violation of the policy conditions no. (2)(II)(a),(2)(II)(b) and (2)(II)(c) of Chapter 87 of ITC-HS 1.3 It was also held that the transaction value declared by the importer AED 2,15,22 (CIP) (Rs. 33,11,537.50/-) appeared to be low. The assessable value was re-determined by the adjudicating authority as per Rule 9 of Customs valuation Rules, 2007, to Rs. 53,50,433/-. The benefit of exemption is not available cars with CIF value over USD 40,000. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condition at Sl. No. (2)(I)(c) Of the Policy notes to chapter 87 states that 'vehicle has not been registered for use in any country according to the laws of the country prior to importation into India'. The vehicle imported having been registered in UAE cannot be considered as a new vehicle. The relevant policy notes referred by Ld. AR are as under: As per para 2 of the Import Licence notes to chapter 87 reads as follows: (I) A new imported vehicle (including all the vehicles other than Railway or Tramway) for the purposes of this Chapter shall mean a vehicle that:- (a) has not been manufactured/assembled in India; and (b) has not been sold, leased or loaned prior to importation into India; or (c) has not been registered for use in any country according to the laws of that country, prior to importation into India. (II) The import of new vehicles shall be subject to the following conditions: a. The new vehicle shall (i) have a speedometer indicating the speed in Kilometers per hour; (ii) have right hand steering, and controls (applicable on vehicles other than two and three wheelers) (iii) have photometry of the headlamps to suit keep-left t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. With regard to the valuation of the car, on verification it is seen from the website (www.nissan-me.com ) of M/s. Nissan Middle East FZE, Dubai, the regional headquarters of M/s. Nissan Motor Corporation, Japan, that the supplier M/s. Al Masaood Automobiles, UAE is a distributor for M/s. Nissan Middle East FZE, Dubai. The importer had submitted a copy of sale invoice dated 20.12.2012 between M/s. Nissan Middle East FZE, Dubai and M/s. Al Masaood Automobiles, UAE claimed to be pertaining to the imported vehicle wherein value of the vehicle is Japanese Yen 55,44,000 CIF. However, there were no details about Model or Chassis Number in the said sale invoice. To ascertain the value based on model variant TI-L of the vehicle mentioned in the certificate like GSO Conformity Certificate i.e., GCC Standardization Organization. Based on the model name TI-L and name of the vehicle Nissan Petrol , it was seen from the Australian website of M/s. Nissan Motor Corporation (www.nissan.com.au), the value of the vehicle in Australia (right hand traffic country), recommended drive away price was AUD 1,22,688 which included Nissan's recommended dealer delivery fee, GST and Luxury car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoice was not confirmed from the original manufacturer itself. In that case, the Commissioner (Appeal) could have remanded back the case to Original Adjudicating Authority instead of allowing the appeal. Further, in this case, the importer had requested for waiver of Show Cause Notice and Personal Hearing and agreed to the enhancement of value vide letter dated 18.04.2013. 2.4 The Commissioner (Appeals) in his conclusion has discussed about conformity certificate. The conformity certificate no.54994 submitted by the importer at the time of filing the Bill of Entry, provided certain details of the vehicle however it was silent on whether it was RHD/LHD. Therefore, it appears that the subject vehicle was imported from Dubai to India only after changing the transmission into RHD. 2.5 Since the importer has violated the policy condition of the Chapter 87 Notes and the Commissioner (Appeals) had accepted the value declared by the importer, the Order of the Commissioner (Appeals) is not legal and proper. 3. The Ld. Counsel Shri S. Sankaranarayanan appeared and argued for the importer/ respondent. It is submitted that the first check examination has noted the vehicle is new on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued by Ministry where in it is clarified that when the registration is only technical formality, and the registration is not for use of car abroad, the benefit or Notification should not be denied. 3.3 The Ld. Counsel submitted that the GSO Conformity Certificate was also produced by the appellant. The same has been discussed by the Commissioner (Appeals). The original authority had observed that the model variant noted in the certificate is Ti_L . In Gulf Co-operation Council country the vehicles of right hand driving are used. Nothing is stated as to why the said certificate cannot be accepted. 3.4 In regard to issue on valuation, the Ld. Counsel argued that the original authority has not given any reasons for rejecting the transaction value. Further, the value of car imported in to Australia cannot be adopted to enhance the value as such value differs based on the destination of shipment. The Commissioner (Appeals) have correctly concluded that the rejection of transaction value and the redetermination of value on the basis value of the car imported in Australia cannot be adopted. The Ld. Counsel prayed that the appeal may be dismissed. 4. Heard both sides. 5. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AE. The vehicle also is said to have been registered in UAE. In such circumstances, merely because the said certificate shows the vehicle as right hand drive, which is the model used in India, it cannot be said that the appellant has not complied with policy conditions. 7. The second issue is with regard to valuation. In para-6 of the order passed by the original authority, it is merely stated that the declared value of Rs.33,11,537/- appears to be low. There are no reasons given by the adjudicating authority to doubt and reject the transaction value. There is no evidence put forward by the department to allege that the value is not at arm's length. As per Section 14 of the Customs Act, 1962, the value of imported goods shall be the transaction value of such goods. Without giving sufficient reasons as to why the transaction value cannot be accepted, the department cannot reject the same. In the present case, the commodity imported is a vehicle and the value of the same can be verified easily from website. The department could have easily checked if there is any undervaluation. No such findings have been rendered by the adjudicating authority as to why he concluded that the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d value under Rule 10A of the Valuation Rules and accordingly they produced an invoice dated 5-12-2005 issued by one M/s. Choice Motors, who were claimed to be dealers, in UAE, of BMW car manufactured in Germany. This invoice contains identity particulars such as vehicle model no., chassis no. etc. The claim of the appellant is that the vehicle had been shipped from Germany and subsequently transhipped from UAE and, therefore, the value mentioned in the dealer s invoice should be accepted in view of the international practice relating to trade in motor vehicles. We find that the impugned order does not contain any finding or observation against the genuineness of this document. The Commissioner has chosen to go by the listed price of the vehicle for the year 2005. It is settled law that, before proceeding to determine the assessable value of imported goods, the assessing authority should state reasons for rejecting the evidence adduced by the importer in respect of the value declared by him. The invoice produced by the appellant was not rejected in this manner. Therefore, we are of the view that the declared value of the vehicle should be accepted in this case. It is made clear tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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