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2017 (1) TMI 749 - CESTAT BANGALORE

2017 (1) TMI 749 - CESTAT BANGALORE - TMI - Issue of SCN beyond 5 years - Confiscation - redemption fine - penalty - import of Harley Davidson motor bike - natural justice - Held that: - the Department has not conducted the investigation properly by not taking the investigation to its logical end. The Department has merely recovered the possession of the bike from the appellant on the allegation that it is smuggled goods. Whereas the fact of the matter is that motor bike is a non-notified goods .....

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hich means the show-cause notice should have been issued on or before 01.06.2013 whereas in the present case the show-cause notice was issued on 30.10.2013 which is beyond the period of limitation. - Appeal allowed - decided in favor of appellant. - C/20256/2015-DB - Final Order No. 20001/ 2016 - Dated:- 2-1-2017 - Shri S. S. Garg, Judicial Member And Shri V. Padmanabhan, Technical Member Shri P.A. Augustian, Advocate For the Appellant Shri Mohammed Yusuf, AR For the Respondent ORDER Per S. .....

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1 dated 02.06.2009 and it was registered in Karnataka under Reg. No. KA-01-EM-4433. After negotiation and verifying the documents pertaining to the bike, appellant purchased the same. Thereafter on 05.05.2013, officers from the respondent came to the appellant s house and directed the appellant to produce the motor bike and the documents pertaining to the said vehicle. After verifying the documents the Department alleged illegality in import and the motor bike was seized under Section 110 of the .....

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r bike. Based on the report of the Chartered Engineer, the value of the bike is assessed as ₹ 4,06,020/- (Rupees Four Lakhs Six Thousand and Twenty only) at the time of import and thereafter a show-cause notice was issued on 30.10.2013. The appellant filed detailed reply to the show-cause notice and raised the objection that the demand of duty after a period of limitation is unsustainable and the detention of the vehicle is totally illegal. He also submitted that there is no provision to d .....

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ive Lakhs Sixty Nine Thousand Eight Hundred and Forty Nine only) with applicable interest and other charges. In addition to that, the respondent also imposed a penalty of ₹ 20,000/- (Rupees Twenty Thousand only) on the appellant under Section 112 of the Customs Act. Aggrieved by the said order, the appellant filed an appeal before the Commissioner of Customs (Appeals) and the Commissioner vide order dated 13.11.2014 rejected the appeal filed by the appellant on the ground that there is no .....

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Bill of Entry No. 590451 dated 02.06.2008 and not under Bill of Entry No. 590451 dated 02.06.2009 as reflected in the documents in possession of the appellant. He further submitted that assuming the motor bike was illegally imported in the year 2008 as alleged in the show-cause notice, then the statutory period to issue a show-cause notice commences on the date of final assessment and the demand of differential duty is barred by limitation. He further submitted that the motor bike is not falling .....

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Prev) Vs. Chitra Corporation 2008 (223) E.L.T. 370 (Bom.) c) CC (Prev) Vs. Aakash Enterprises 2006 (205) E.L.T. 23 (Bom.) d) CC (Prev) Vs. Shri Ganesh Ent. 2006 (199) E.L.T. 208 (Bom.) e) Kishan Rao Choudhary Vs. CC, Excise 2005 (192) E.L.T. 1015 3.1. He further submitted that as per the investigation made by the Department from Mumbai Customs authority, the Bill of Entry of the same No. was filed on 02.06.2008 and the importer was M/s. Sony Enterprises in the said Bill of Entry and they have im .....

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cer had not made any efforts to find out further details either from the importer or from the CHA. The Investigating Officer has not bothered to find out the engine number of the motor bike to tally whether the said bike engine and the present bike are having the same engine number or not. Without proper investigation, the department has proceeded to recover the duty from the appellant who is a bonafide purchaser of the said vehicle. He further submitted that the appellant purchased the vehicle .....

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pport of this submission, he relied upon the following authorities: a) VXL India Ltd. Vs. CC, Mumbai (2000 (122) E.L.T. 710 (Tribunal) b) CC Mumbai Vs. VXL India Ltd. 2006 (193) E.L.T. 396 (Bom.) c) CC Mumbai Vs. VXL India Ltd. 2006 (197) E.L.T. A121 (S.C) d) CC Bangalore Vs. Five Star Shipping 2012 (278) E.L.T. 196 (Kar.) e) Nalin Choksey Vs. CC Cochin 2009 (240) E.L.T. 246 3.2. He further submitted that the impugned order is bad in law because the penalty imposed on the appellant is unsustaina .....

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