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TMI Blog2005 (5) TMI 507X X X X Extracts X X X X X X X X Extracts X X X X ..... nay Saraf, Afzal Nadir Ali and the appellant herein asking to show cause why the car in question should not be confiscated, why penalty should not be imposed why the value of the car not be enhanced to Rs. 11,41,520/- and why the Bond executed by the appellant at the time of provisional release of the car should not be enforced. The importer i.e. Shri K.C. Mathew did not care to reply to the notice, while others did. (d) At the personal hearing the proposal to challenge the confiscation of the car was made by Shri Gade. The Commissioner found "The reason why the matters have come to this pass is that the DRI could successfully establish that the car in question was imported into India in contravention of ITC Public Notice No. 202/92-97, dated 30-3-94. Import of a motor car into India of 1600 CC Engine capacity, is allowed when it is brought by a passenger returning to India. He should have used the car for atleast one year abroad. According to elusive Mathew, he purchased the car on 30-4-94 for 80,000 Dirhams at Dubai. The department of ports and customs, Dubai in their letter dated 30-12-95 (30th agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. The basis on which the value is arrived at was communicated to Shri Gade and others. They did not dispute this basis. I hold that the DRI's contention that the revised value of the impugned car is Rs. 11,41,520/- goes uncontested. The differential duty of Rs. 5,32,004/- is demandable under Section 28 of the Customs Act. The notice also proposes to charge interest under Section 28AA of the Customs Act. It is payable if Shri Gade does not pay the differential duty now demanded within three months of the receipt of this order. Since the year of manufacture is misdeclared, the car is liable to confiscation under Section 111(m) of the Customs Act. The consultant representing Shri Gade made a point during the course of P.H. that the department did not establish that the car was indeed manufactured in 1995. I observe that the invoice and registration paper made in Dubai are documents which cannot be relied upon. The department could establish that the car was imported into Dubai in March, 1995. The conclusion of the department that the car is made in 1995 cannot be seriously questioned in the light of this evidence. In any case no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- under Section 125(r) read with Section 28 of the Customs Act, 1962 alongwith interest under Section 28AA & did not impose any penalty on the appellants and others except on Shri Mathew under Section 114(A) of the Customs Act, 1962. (e) The appellant contests the valuation. The adjudicator finds that Shri Gade the appellants did not dispute the basis of the valuation which was communicated to the notices. Therefore he holds the valuation of the car to be Rs. 11,41,520/- which goes unaccounted & that was the reason to arrive at a liability to confiscation under Section 111(m). However, this valuation arrived based on the formula applicable for valuation of cars as applicable by taking the imported car being of 1995 model the following submissions were made on behalf of the appellant before the adjudicator, by reply dated June 30, 1998. Coming to the second allegation "6. that the said car is liable to confiscation under Section 111(m) of the Customs Act, 1962, on the ground that the car is of 1995 Model against 1994 declared in the Bill of Entry, the following submissions may please be appreciate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1995 and hence is of Model 1995. This is an assumption. Even if it is admitted for the sake of argument that the said car was imported into Dubai in the year 1995, it cannot be concluded that the car is of 1995 Model as it will amount to a conclusion that all the cars imported in the year 1995 into Dubai will be of 1994 Model and the cars manufactured in earlier years cannot be exported into Dubai. (c) Without prejudice to what has been stated above, the allegation is being based on a photocopy of the Bill No. 2075117 dated 28-5-95 and in view of my submissions made in para 5 above, the bill No. 2075117 dated 28-5-95 does not have any evidential value and thus nothing can be proved with the help of the Bill No. 2075117. The car is proposed to be assessed 7. at a value of Rs. 11,41,520/- on the grounds that the sold car is of 1995 model and in view of my submissions, the allegation regarding car being of 1995 model remains unproved, and hence the assessment of the car at a price of Rs. 11,41,520/- also does not survive." The impugned order is silent on these vital contentions raised. The order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribes "a use" and not mere purchase/ownership which may be constructive or real while 'use' would be of a nature resulting from more than a constructive possession. In any case, Mathew has by not replying to the show cause notice not cared to prove a real possession to prove 'use' out side Dubai. The confiscation under Section 111(d) therefore has to be upheld for violation of PN on that behalf. ([10]Since theg) confiscation under Section ratio 111(d) is to be upheld & the confiscation under Section 111(m) is not upheld since the car is not proved to be of 1995 make and the physical examination in the Docks has found acceptance by the Appraisers to be of 1994 make. In view of the same, the duty demands alongwith interest on enhanced value are to be set aside & redemption fine also is to be reduced. The ld. Advocate for the appellants relies upon the Order No. 144/99/CAC/CC/dated 7-4-99 of Commissioner of Customs (Import), Mumbai wherein similar facts for a Pajero car imported in 1997 & sold & seized from M/s. Kelogy was ordered to be confiscated only under Section 111(d) & released on redemption fine of Rs. 15,000/- only after coming to a finding that the vehicle was cleared thr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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