TMI Blog2005 (5) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence to be filed before the Tribunal. The miscellaneous application as well as the appeal are taken up for disposal. 3. Briefly the facts are that the respondent imported a motor car (LEXUS) and sought its clearance through ICD at Pune. The declared CIF value is Rs. 9,68,000/-. The car is fitted with various accessories described in the impugned order. The importer tendered a certificate, issued by an authorised dealer in Lexus Toyota in London, dated 5-11-1998 indicating that the FOB value of a new car of the same model is British Pounds 22,555 which includes the value of the said accessories. The said certificate gave the chassis number which tallied with the car sought to be cleared. The Commissioner found that the Express 1998 W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll this additional evidence only indicates how the value is misdeclared. But we observe that the additional evidence was not available to the Commissioner at the time of adjudication. The Commissioner s order cannot be set aside on the basis of evidence which was not available before him. The legality and propriety of the order can be judged only on the basis of evidence before him. Further the Tribunal in the case of Sri Ranga Industries v. Commissioner [1994 (72) E.L.T. 638 (T)] later upheld by the Supreme Court [1997 (95) E.L.T. A227 (S.C.)] held that documents which are not part of the record before the lower adjudicating authority in adjudication process and which are not required to enable the Tribunal to pass order in the case are no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidual and not by a trader. Normally margin of profit concept applies when imports are made by traders/manufacturers who import goods on a large scale. Even otherwise the Commissioner imposed a fine ranging to 24% of CIF value. We are not aware of cases where the MOP can be more than this. The Revenue at least has not produced any evidence to that effect. We reject this prayer as well. 9. The Revenue is aggrieved by the quantum of penalty (Rs. 50,000/-) imposed by the Commissioner. The Revenue may now be aware of certain other details which were not known to the Commissioner. Such knowledge on the part of the Revenue cannot be a basis for enhancement of penalty. We see no justification in acceding to the Revenue s plea on this count. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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