V.K. Agrawal, Member (T)
1. This is an appeal against the order dated 28-9-1993 passed by the Commissioner of Customs (Appeals), Cochin.
2. Briefly stated the facts are that Mrs. Elisua Antony, a passenger returning from Abu Dhabi and availing of transfer of residence, imported one Mercedes Benz Saloon car. In the Bill of Entry dated 11-1-1993, it was declared that the car was of 1980 make and model was 200 D. In the Car Export Certificate dated 25-1-1992 issued by the Traffic and Licence Department of Abu Dhabi, it was mentioned that the car was registered in the name of the Appellants since 28-6-1983. The enquires, however, revealed that the car was manufactured in 1983 and engine capacity was 2400 cc. and that car was not registered in the name of the Appellant in UAE. The Additional Commissioner of Customs in the adjudication proceedings, confiscated the car and gave an option to redeem the same on payment of fine of Rs. 2,10,000/- and imposed a penalty of Rs. 55,000/- observing that the appellant imported the Motor car under the cover of documents containing wrong information and documents were manipulated. On appeal, the Commissioner (Appeals) confirmed the order of the adjudicating authority holding that the appellants had purchased car on 25-11-1992 and exported it the same day from Dubai; that the certificate produced by her showing that the car was registered in her name on 28-6-1983 was a fabricated document; that she had not complied with the condition that the car should have been in her use and possession for more than one year.
2. Shri P. Santhalingam, ld. Advocate for the appellants, submitted that when a Mercedez Benz 1980 model 200D was brought to workshop of Appellant’s husband, she purchased it in 1983; that the damaged engine was substituted by replacing it with a 1983 model 240D engine; that the vehicle was registered under No. 62585/RED in the name of the previous owner; that the vehicle was also converted from left hand drive into right hand drive; that the records with the authorities would establish the fact that she applied for the import of the vehicle into India in 1985, which did not materialise since she postponed her programme of resettlement in Kerala; that the vehicle was in the possession of appellant’s family at Abu Dhabi for a long period. The ld. Advocate further mentioned that no misdeclaration was made by them in bill of entry as the enquiries conducted by the Customs authorities were on the basis of markings found on the engine which was replaced and similarly the report received from the manufacturer was incomplete in relation to the car as a whole; that on the basis of the model and date of manufacture of the engine, the car ought not to have been assessed for its year of manufacture and valuation. The car export certificate issued was correct and the adjudicating authority erroneously treated the car export certificate as a registration certificate of the Car. The implications of the subsequent change of the engine went unnoticed and there was no deliberate misdeclaration. He also mentioned that the possession, custody and use of the car need not necessarily take the registration of the car in the name of the user and registration in the user’s name was not a mandatory condition for use and possession. He also submitted that in the light of Board’s Circular F. No. 495/16/93-Cus., dated 26-5-1993 the depreciation to be allowed for valuation of Motor car should be 70% and not 46%. In this regard he relied upon the decision in Suresh Kumar v. CC -1996 (87) E.L.T. 667 (Tribunal) in which in respect of car of 1983 Model and imported in May 1988, Tribunal allowed 52% depreciation as against 46% allowed by the Department. He also relied upon the decision in the case of S.R. Chanan v. C.C. – 1996 (87) E.L.T. 147 (Tribunal).
3. Countering the arguments, Shri R.D. Negi, ld. SDR, submitted that the car was purchased by the appellant on 25-11-1992 and was exported by her on the very same day; that the vehicle was not in her possession for one year as required under Import Export Policy. The ld. SDR also submitted that the documents were also fabricated as the car was manufactured in 1983 and not in 1980 and the Model was 240D instead of 200 D declared in Bill of Entry. He mentioned that in view of these facts, confiscation and release on payment of redemption fine and imposition of penalty was justified. He finally mentioned that as Board’s circular was issued in May, 1993, the same would not be available to the car imported in 92-93 and in any case the depreciation upto 70% was to be given only on merits and after inspection of the Motor vehicle.
4. We have considered the submissions of both the sides. We find that the Collector (Appeals) in the impugned order had specifically mentioned that the appellants had stated in the declaration that the car was of 1980 make and 200D model whereas on the enquiry made with the manufacturer of the car revealed that the car was manufactured in 1983 and was of 240D model. The Appellants except stating that the car was of 1980 Make and after accident the engine was changed in 1983, has not produced any evidence in support of his contention. He has also not controverted the finding of she Collector (Appeals) that the car was not registered in her name and she purchased the car on 25-11-1992 and exported it the same day. According to Import Export Policy for 1992-97, it was essential that the car had been in the use of the importer for more than one year prior to his return to India. No evidence again has been adduced by the appellant to prove that the car was in her use for more than one year prior to her return to India. In view of these facts and circumstances we find no reason to interfere with the impugned order and upheld the order of the confiscation of the Motor car and its release on payment of redemption fine and amount of penalty imposed on the appellants. However, we agree with the appellant that 70% depreciation in valuation of imported car should be allowed as the car was of 1983 make as per the enquiries made by the department and was imported in 1993 January. The Appellate Tribunal held in the case of S.R. Chanan v. C.C., New Delhi (supra) that the subsequent instructions of the Ministry in increasing the level of maximum of depreciation beyond 46% in respect of cars also can be applied for past cases. Accordingly we allow the depreciation of 70% in valuation of cars instead of 46% allowed by the Department.
5. Appeal is disposed of in these terms.
