ORDER
Moheb Ali M., Member (T)
1. The above miscellaneous application and the appeal are taken up for disposal.
2. The Revenue is in appeal against the order of the Commissioner of Customs, Pune. The prayer in the miscellaneous application is to allow additional evidence to be filed before the Tribunal. The miscellaneous application as well as the appeal are taken up for disposal.
3. Briefly the facts are that the respondent imported a motor car (LEXUS) and sought its clearance through ICD at Pune. The declared CIF value is Rs. 9,68,000/-. The car is fitted with various accessories described in the impugned order. The importer tendered a certificate, issued by an authorised dealer in Lexus Toyota in London, dated 5.11.1998 indicating that the FOB value of a new car of the same model is British Pounds £ 22,555/- which includes the value of the said accessories. The said certificate gave the chassis number which tallied with the car sought to be cleared. The Commissioner found that the Express 1998 World Car Guide 44th Edition indicated that the price of a new car was £ 30,400 FOB. The Commissioner thereupon made a reference to Mumbai Custom House to find out whether the price indicated in the certificate represented the correct value. Mumbai Custom House in reply informed him that the price indicated in the certificate was fair. The CIF price was then arrived at Rs. 14,80,959/- rejecting the declared value. The Commissioner confiscated the car under Section 111(d) and (m) of the Customs Act. Section 111(d) was invoked because the said car being less than one year old is not permitted to be imported under the Import Policy then existing by a passenger under T R and Section 111(m) because the value is misdeclared. He allowed the car to be redeemed on payment of a fine of Rs. 3,50,000/- which roughly worked out to 24% of the ascertained value. He also imposed a penalty of Rs. 50,000/- under Section 112 of the same Act. The Revenue is aggrieved.
4. We have heard both sides.
5. We first take up the miscellaneous application filed under Rule 23 of the CESTAT (Procedure) Rules. The prayer is to allow additional evidence to be brought on record which indicated that the respondent tried to defraud the Revenue in more than one ways by misstating the facts. It appears that all this evidence was gathered during the course of departmental proceedings initiated against the officer who adjudicated the case. The Revenue’s application narrates at length the importer’s mala fides. All this additional evidence only indicates how the value is misdeclared. But we observe that the additional evidence was not available to the Commissioner at the time of adjudication. The Commissioner’s order cannot be set aside on the basis of evidence which was not available before him. The legality and propriety of the order can be judged only on the basis of evidence before him. Further the Tribunal in the case of Raya Industries v. Commissioner later upheld by the Supreme Court (1999 (95) ELT A 227 (SC)) held that documents which are not part of the record before the lower adjudicating authority in adjudication process and which are not required to enable the Tribunal to pass order in the case are not admissible as additional evidence. We observe that the Commissioner even otherwise rejected the declared value and arrived at the value given in the certificate issued by the authorised dealer and confirmed by Mumbai Custom House. Assuming that the Commissioner was in possession of the evidence now sought to be tendered he would have still only confiscated the car, which he did. It would not have been possible for him to enhance the value further as the Revenue now wants in view of the certificate.
6. Following the ratio of the above decision, we do not see how this additional evidence collected at the back of the respondent is relevant to decide the Revenue’s appeal. We, therefore, reject the miscellaneous application seeking to introduce new evidence. The case law cited by the Revenue is distinguished in the light of the Tribunal’s decision cited supra.
7. Coming to the appeal itself, we observe that the Revenue seeks to revise the value further in the light of additional evidence gathered during some departmental proceedings. We reject this plea. The Commissioner decided the case before him on the basis of evidence available before him. He rejected the transaction value and determined it in accordance with law. It is not possible to accede to the plea that value can be repeatedly revised each time some new evidence is collected behind the importer’s back.
8. The Revenue pleads for enhancement of fine imposed by the Commissioner. This import is made by an individual and by a trader. Normally margin of profit concept applies when imports are made by traders/manufacturers who import goods on a large scale. Even otherwise the Commissioner imposed a fine ranging to 24% of CIF value. We are not aware of cases where the MOP can be more than this. The Revenue at least has not produced any evidence to that effect. We reject this prayer as well.
9. The Revenue is aggrieved by the quantum of penalty (Rs. 50,000/-) imposed by the Commissioner. The Revenue may now be aware of certain other details which were not known to the Commissioner. Such knowledge on the part of the Revenue cannot be a basis for enhancement of penalty. We see no justification in acceding to the Revenue’s plea on this count.
10. The miscellaneous application and the appeal are rejected.