ORDER
T.K. Jayaraman, Member (T)
1. This appeal has been filed against the Order-in-Original 15/2006 dt 28.4.2006 passed by the Commissioner of Customs, Cochin.
2. The appellants had imported a Car and declared the model of the Car as 1998 and value as at USD 17,500/-. The Revenue issued Show Cause Notice proposing to treat the model of the car as 2002 and value at Rs. 23,95,536/-. In the impugned order, the Commissioner ordered that the model of the Car should be taken as of 2002 make and value as proposed in the Show Cause Notice under Rule 8 of the Customs Valuation Rules, 1988. He has confiscated the Car under Section 111(d) & (m) of the Customs Act, 1962 read with Section 3(3) of Foreign Trade (Development & Regulation) Act, 1992. He imposed a redemption fine of Rs. 8,50,000/-. Further he imposed a penalty of Rs. 2,50,000/- on the appellants under Section 112(a) of the Customs Act. The appellant strongly challenges the impugned order.
3. Shri K.R. Harin, Advocate appeared for the appellants and Shri K. Sambi Reddi, learned DR for the Revenue
4. The learned Advocate urged the following points:
(i) The appellant filed Bill of Entry dated 28.11.2005 for clearance of the vehicle on transfer of residence. He declared the vehicle to be 1998 Model. He produced the relevant documents such as vehicle Registration documents, affidavit, etc., but the Customs Officers summoned the appellants and compelled him to admit that the vehicle to be 2002 Model Range Rover vehicle. Otherwise they threatened prosecution. In view of the threat of the Revenue Officers, the appellant got in touch with his cousin abroad to send revised invoices. Thereafter, the same was submitted to the Department. But the Revenue issued a Show Cause Notice dated 27.3.2006. Request was made for permission to re-export the car but the Respondent passed the impugned Order-in-Original dated 28.4.2006. The appellant obtained information from internet to the effect that the vehicle is 1998 model. Moreover, he could get a copy of the Show Cause Notice dated 16.3.2006 issued by the Commissioner of Customs (Imports), New Custom House, Mumbai which was relied on data similar to that produced by the appellant for determining the model year of the car. It was submitted that the above documents may be admitted for deciding the case.
(ii) The document relied upon by the Respondent, especially the data/information said to have been obtained from internet on the model of the vehicle, etc. have not been made available to the appellant.
(iii) Letter dated 10.3.2006 of Navnit Motors Pvt. Ltd., Thane, on which specific reliance was placed by the Revenue has not been provided to the appellant. No one from Navnit Motors Pvt. Ltd. was either examined or allowed to be cross examined.
(iv) The finding in the impugned order that registration records are false is unsupported by any evidence.
(v) Request for re-export was not permitted without any valid ground, and in violation of the law. The precedent cited in the Order-in-Original also does not state the correct law.
(vi) Despite 4 months of investigation the Revenue was unable to establish that the declared model was incorrect. Appearance of the word “VOGUE” on the rear of the vehicle would not make the vehicle a “VOGUE” model.
(vii) The finding that there is no Car with the Chassis number as declared in the Bill of Entry and related documents are without any evidence and based an alleged letter received from the representative of the manufacturer in India. This letter was never provided to the appellant.
(viii) The Adjudicating authority is failed to appreciate the circumstances under which the appellant was forced to state that the vehicle is of the year and model as stated by the Customs authorities. Such a statement has no value in the face of the Annexure 18, letter from the manufacturer and Annexure 17 data, which confirm the model and the year of the manufacture of the car as declared.
(ix) The Mahazar cannot be of any evidentiary value in establishing that the vehicle is 2002 model. The witnesses are not experts in determining or identifying the vehicle models.
(x) The valuation of vehicles has been done after adding the value of standard fittings such as Alloy Wheels, Steering, Windows, Mirror, Air Conditioner, CD changer, GPS Navigation System, SRS air bags, etc. separately. Such addition of standard fittings separately to determine value is not permissible. In fact an amount of Rs. 1.74 lakhs has been added to the value only on account of the above.
(xi) The Respondent was wrong in holding that the Registration records issued by a sovereign authority are false without any evidence.
(xii) The show cause notice was silent on the request for re-export and amendment of Bills of Entry. The appellant’s request for amendment of Bills of Entry cannot be considered as part of the adjudication proceedings. In incorporating these extraneous matters in the impugned order, the Respondent has traveled beyond the Show Cause Notice while issuing the impugned order.
(xiii) There was no ground to disregard the invoice price as well to hold that in the case of personal imports, Rule 4 of the Customs Valuation Rules will not be applicable.
(xiv) There are no grounds to confiscate the imported car under Sub-section 111(m) or (d) of the Customs Act.
(xv) No rational basis has been followed in determining the Redemption Fine. If the redemption fine is added to assessable value, the same goes much beyond the market value of the similar car.
(xvi) There is no ground to impose any penalty under Section 112 of the Customs Act. The penalty is arbitrarily fixed and is very high.
(xvii) During the course of personal hearing, the learned Counsel relied on the following case laws:
(i) Ravindra & Co. v. U.O.I
(ii) Odayappan v. CCE, Trichy
(iii) Oudh Sugar mills Ltd. v. U.O.I. 1978 (2) ELT (J 172)
(iv) Boharji Manufacturing Pvt Ltd. v. CCE, Delhi
(v) Akbar Badruddin Jiwani v. CC
(vi) CL Jain Woolen Mills v. U.O.I.
(vii) Digital Systems v. CC, Chennai
5. The learned JDR reiterated the findings of the Commissioner. Further on the valuation of the imported car, he relied on the following citations:
(i) R.L. Beri v. Collector of Customs which has been affirmed by the Apex Court
(ii) Sima Khatib v. Commissioner of Customs, Mumbai 2004 (166) ELT 119 (Tri.- Mumbai)
(iii) B.J. Singh v. Collector of Customs
(iv) Satya Prakash Agnihotri v. Collector of Customs
(v) V.S. Verma v. Collector of Customs
(vi) Inderjit Singh Bawa v. Collector of Customs, Bombay
(vii) Prem Kumar v. Collector of Customs
6. We have gone through the records of the case carefully. The main charge against the appellant is that he mis-declared the model of the car imported as 1998 and also its value with an intent to evade payment of Customs duty. According to the Revenue, the documents produced by the appellant are fabricated. The appellant in the ‘Grounds of Appeal’ has stated that the department has not given copies of documents relied on. Further it was pointed out that under duress from Customs authority, the importer gave a statement that model of the car was 2002. He has also stated that he is in possession of a document dated 22nd May 2006 which confirms that model of car is of 1998. He also produced a copy of Show Cause Notice issued by the Commissioner of Customs (Imports), New Customs House, Mumbai which has relied on data similar to that obtained by the appellant from the internet. On a careful consideration of the entire matter, we find that the data/information obtained by appellant given in Annexure 17 & 18 of the Paper Book should be examined before deciding the matter. Moreover, the Department should give all the relied on documents to the appellant in the interest of natural justice. In these circumstances, we set aside the impugned order and remand the matter to the Original Authority to decide the case within a period of four months after following our directions given above. All issues are kept open. Thus the appeal is allowed by way of remand.
(Pronounced and dictated in the open court)