V.K. Ashtana, Member (T)
1. This appeal is against the Order-in-Original No. 3/99, dated 15-2-2000 passed by the Commissioner of Customs, wherein he has confiscated the Toyota Land Cruiser car for contravention of the Import Policy, but has adjudged the redemption fine of Rs. 11,00,000/- and penalty of Rs. 3,00,000. He has also demanded duty at appropriate rate on the ground that the importer appellants filed false affidavit and forged papers with the intention to claim benefit of ITC PN 3/97 and that in effect, he did not possess the car for one year prior to his return from Dubai, UAE, instead the car was shifted much after he left for India.
2. Heard learned advocate for the appellants and Sri S. Sudarsan, learned D.R.
3. Learned advocate submits that it is not disputed that the vehicle was not in possession and use of the importer appellants for one year, as required by the ITC Regulation. He further submits that the redemption fine is excessive, inasmuch as a similar model car imported in 1998 in Bombay Port was released on redemption fine of Rs. 3.5 lacs and without any penalty vide order of the Commissioner of Customs dated 7-10-1998. He submits that the market value of the car is about Rs. 20,00,000/- and if the present level of duty, panalty and redemption fine is paid, the landed cost would exceed the market value tremendously. He submits that all these submissions were made before the Commissioner and though the same have been noted, however, they have not been considered and there is no speaking order on this issue. He also submits that the car is lying in open area under Customs custody and likely to further deteriorate during the likely monsoon season. He cites the Tribunal decision in the case of Jayant Oil Mills (P) Ltd. as reported in 1998 (9) SCC 639 and submits that the Tribunal itself can estimate the margin of profit and redemption fine. He also cites the decision in the case of Syed Jajal lifteqar and Anr. as reported in 2000 (67) ECC 163, wherein, in a similar matter of spectacle frame, the matter was remanded for de novo consideration and the matter being eight years old, time limit was prescribed for completion of the de novo proceedings. The learned advocate requests a similar time limit in view of the deterioration expected. He also cites decision of this Tribunal vide Final Order No. 2500/99, dated 22-9-1999, arising out of Appeal No. C-440/94/Md, wherein the Tribunal had reduced the redemption fine on 1980 model Mercedes Benz car having above 1600 cc engine capacity to Rs. 25,000/- on assessed value of Rs. 1.39 lacs and the penalty was downgraded to Rs. 25,000/-.
4. Learned D.R. submits that since there is flagrant violation of PTC Policy for import of motor vehicle, since the Toyota Land Cruiser car is having premium price in the market and also since the importer filed false affidavit and submitted forged documents and therefore, in view of this the Order-in-Original is legal and proper and needs no modification.
5. We have carefully considered the rival submissions and records of the case. We find that the Order-in-Original impugned, on a quick perusal thereof, shows that the submissions of learned advocate with respect to import of similar vehicle at Bombay which was cleared at much lower amounts of redemption fine has not been considered by the Commissioner of Customs. We find that the market price in Mumbai would certainly be more, if not at par for such vehicles than at Cochin, therefore, this evidence was required to be considered in the interest of justice. We also find that the redemption fine has not been levied after calculating the landed cost, margin of profit thereon as per the normal formula. Thus, it appears that there has been no detailed findings as to how the quantum of redemption fine has been arrived at.
6. In view of the fact that the matter lies on a short compass and in view of the above findings, the order impugned appears to be suffering from non-application of mind and being a non-speaking order, therefore, after allowing the waiver and stay, we set aside the order impugned and remand the matter to the original authority for de novo consideration. Learned original authority shall hear the submissions of the importer and deal with each of these submissions extensively in the interest of justice. Since the matter is old and the car is deteriorating being stored in open area under Customs warehousing, therefore, the learned Commissioner of Customs is directed to complete the de novo proceedings within a period of four months from the date of receipt of this order. Ordered accordingly.