2019 (9) TMI 596 - AT - Customs

Import of one used motor cycle under Transfer of residence (TR) facility - non-fulfillment of condition for availing the relaxation from import conditions - under-valuation - second adjudication proceedings initiated vide impugned order related to house hold items brought by appellant - HELD THAT - In the case of house hold items they were subject to adjudication and released on payment of fine and penalty then the second adjudication proceedings initiated by the impugned order related to house hold items are not sustainable in law. Further the appellant has proved on record that he is entitled to claim the benefit of TR because as per the Import Policy the appellant is entitled to bring vehicle after staying abroad for the minimum period of 2 years - In the present case the appellant has proved that he is staying abroad for the last many years. Further the finding of the adjudicating authority that the appellant also brought one motor vehicle in 2009 and therefore he is not entitled to bring one more motor vehicle in 2018 is correct as per the Import Policy. Further the vehicle is manufactured by Honda and it is freely importable and the price is available on internet also and the appellant has also produced Customs Data wherein the import price of the same GL 1800 bike in 2012 was 19, 000 USD only and if we give the benefit of depreciation the assessable value in 2018 will Rs. 5, 99, 127/- which is very close to the declared value Rs. 4, 79, 408/- whereas the Customs had adopted an imaginary value of Rs. 19 67, 895/- based on some insurance documents filed in abroad by mistake by the appellant. Under-valuation - HELD THAT - The charge of under valuation must be established through proper method under the law and the burden cannot be shifted to the importer whereas in the present case the Department has failed to prove the charge of under valuation whereas the appellant by producing documents on record has proved that he has purchased the said vehicle in 2017 and that sale letter is also on record and as per the sale letter the appellant has rightly declared the value of the bike as AED 24, 500/- - Further the Department has not brought any material on record to show that the documents produced by them are not genuine document and that there was some transfer of illegal considerations from the appellant to the seller in Dubai. The Customs authority is directed to release the said vehicle on payment of Customs duty as per the declared value of the bike - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Rejection of appeal by Commissioner (Appeals) regarding import of used motor cycle under TR facility.
2. Allegations of undervaluation of imported goods and motor cycle.
3. Entitlement to Transfer of Residence (TR) benefit.
4. Confiscation and valuation of imported motor cycle.
5. Sustainability of impugned order.

Analysis:

1. The appeal challenged the rejection by the Commissioner (Appeals) regarding the import of a used motor cycle under TR facility. The adjudicating authority found violations in import conditions and undervaluation of goods, leading to re-determination of values and confirmation of differential duty.

2. The appellant argued against the second adjudication proceedings related to house hold items, claiming they were already released upon payment of fines and penalties. The appellant also contested the alleged undervaluation based on a mistake in an insurance policy declaration.

3. The appellant asserted entitlement to TR benefits, citing the Import Policy allowing NRIs to bring one vehicle after a minimum stay abroad. Documents supported the appellant's claim of possessing the motor cycle for over a year, fulfilling TR requirements.

4. Regarding the valuation of the imported motor cycle, discrepancies arose between the declared value and the assessed value by the authorities. The appellant provided evidence to support the declared value, including comparisons with similar models and import data.

5. The Tribunal analyzed the arguments and evidence presented by both parties. It found in favor of the appellant, citing legal precedents and the failure of the Department to establish under-valuation charges. The Tribunal set aside the impugned order, directing the Customs authority to release the motor cycle on payment of duty as per the declared value.

This detailed analysis covers the issues raised in the legal judgment, providing a comprehensive overview of the arguments, evidence, and the Tribunal's decision in the case.