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2013 (4) TMI 711 - AT - CustomsConfiscation u/s 111(d) - violation of Exim policy - misdeclaration of value and other material particulars - whether the Toyota Landcruiser vehicle imported vide B/E No. 986965, dated 1-9-2008 is liable to confiscation and if so, under what provisions - Held that:- As regards the undervaluation of the car, the same is clearly established. The admission by both Mr. Rehman Shaikh and Mr. Shaikh Safder in their statements clearly show the value to be US $ 108000 and the invoice for US $ 64000 dated 31-7-2008 submitted to the Customs to be a fabricated one. It is also a settled position in law that admitted facts need not be proved as held by the Hon’ble High Court of Madras in the case of Govindasamy Raghupathy [1997 (6) TMI 356 - MADRAS HIGH COURT]. - Thus misdeclaration and liability to confiscation under Section 111(m) of the Customs Act, 1962 is clearly established. In the light of these evidences, the determination of value at US $ 108000 as the purchase price by the adjudicating authority cannot be faulted. Liability to confiscation under Section 111(d), an IE code was required for the importer and the de facto importer Mr. Rehman Shaikh did not have any such code. Therefore, violation of Section 7 of FTDR Act, 1992 and Rules 2(c), 11 and 14 of Foreign Trade (Regulations) Rules, 1993 is also established. Consequently, provisions of Section 111(d) are attracted. Thus liability to confiscation stand clearly established in this case. Consequently both the appellants Mr. Rehman Shaikh and Mr. Shaikh Safder are liable to penalty under the provisions of Section 112(a) and Section 114AA for the commissions and omissions in rendering the car liable to confiscation Even if the goods have been disposed of during the pendency of adjudication proceedings, the Revenue could not have appropriated the entire sale proceeds. This Tribunal in the case of Yakub Ibrahim Yusuf (supra) had held that in a case where goods have been sold without giving option of payment of redemption fine to importer, importer was entitled to return of sale proceeds with deduction for redemption fine and penalty and duty was not required to be deducted as there was no actual redemption of goods. Therefore, in the present case, where the goods were seized before clearance from the customs, the option to pay fine in lieu of confiscation should have been given to the person who in the view of the Revenue was the real owner/importer. Since no such option has been given, the matter has to go back to the original adjudicating authority. Liability to confiscation of the impugned car under the provisions of Section 111(d) and 111(m) of the Customs Act, 1962 and the liability to penalty of both the appellants under Sections 112(a) and 114AA of the said Act is upheld - However, we remand the matter to the original adjudicating authority to give a finding as to whether the goods are prohibited or not after taking into account the type approval certificate issued by DGFT, New Delhi, vide letter dated 18-1-2010 (if necessary, after verifying the veracity of the same) and if the goods are found not prohibited, to consider grant of option to redeem the goods on payment of fine and penalty to the owner/importer of the car - Decided partly in favour of assessee.
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