TMI Blog2017 (2) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... d purchased the bike taking into confidence the RC issued by a public office. The imposition of penalty ₹ 40,000/- is unsustainable and requires to be set aside. Appeal disposed off - decided partly in favor of appellant. - C/26062/2013 - A/30015/2017 - Dated:- 3-1-2017 - Ms. Sulekha Beevi, C.S., Member (Judicial) Sh. Anwar Ali, Advocate for the Appellant. Sh. Arun Kumar, Deputy Commissioner (AR) for the Respondent. [Order per: Sulekha Beevi, C.S.] 1. The brief facts are as under: Upon receipt of specific intelligence that appellant was in possession of foreign bike which has been smuggled into India, the officers of DRI, Hyderabad visited the residence of the appellant on 24.01.2011. The bike having registration no. MH 06 AP 0033 was found parked in the appellant residence. Though the officers requested the appellant to produce necessary documents pertaining to import of the bike, the appellant could only produce registration certificate issued by RTA, Pen, Raigad and could not produce any document evidencing the import of the bike into India. From the registration certificate dated 14.03.2007 relating to the said bike HONDA RUNE 1800CC, Maroon C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 111 (i) of the Customs Act, 1962. (ii) penalty under section 112(b) of the Customs Act, 1962 should not be imposed on the appellant for being in possession of the smuggled motor cycle. 4. After due process of law, the original authority passed order absolutely confiscating the imported bike of HONDA RUNE 1800 cc valued at ₹ 13,72,923/- under the provisions of 111 (d) of the Customs Act, 1962. He also imposed a penalty of ₹ 40,000/on the appellant under section 112(b) of the Customs Act, 1962. 5. The appellant filed appeal against the above order before the Commissioner (Appeals). It was observed by the Commissioner (Appeals) that the appellant having failed to produce valid import documents so as to prove that the motor cycle was legally imported has violated the provisions of Customs Act, 1962. He therefore held that the motor cycle is liable for confiscation but however, allowed an option to redeem the motor cycle on payment of redemption fine of ₹ 1,50,000/- and also applicable duties on the value arrived for assessment. He upheld the penalty of ₹ 40,000/- imposed by the original authority. Thereafter as per letter OR No. 19.2011-Adjn-Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated by the appellant that he purchased the bike paying an amount of ₹ 5,75,000/- in cash on 22.01.2011. That on 23.01.2011 the appellant was given the registration certificate which was issued in the name of Sh. Suresh Thakker, Raigad. The appellant was also given Form 28 - Application and grant of NOC, Form 29 - Form of notice of Transfer of ownership of a motor vehicle and Form 30- Report of transfer of ownership of motor vehicle all signed by registered owner of the vehicle. The DRI officers visited the appellant's house and seized the vehicle on 24.01.2011. The appellant was in possession of the foreign made bike bearing no. MH 06 AP 0033 which has been brought into India without payment of proper duties of customs and violating the statutory provisions. The bill of entry dated 16.01.2008 submitted to RTA, Raigad pertains to Honda ATV TRX 250 whereas the bike actually registered is HONDA RUNE 1800 cc bearing Chassis no. 1HFSC53J55A100202 and Engine no. SC53E2100242. The appellant was not in possession of any legal document evidencing the legal import of the bike. As a subsequent buyer the appellant ought to have ascertained the antecedent of the bike and of the reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prayed for setting aside the redemption fine and penalty imposed. It is not disputed that the bike (foreign made) found in possession of the appellant did not have valid import documents. The bike having been imported without valid documents is liable for confiscation. Sub Section 2 of Section 125 of the Customs Act specifically provides that where 'any fine in lieu of confiscation of goods is imposed under sub-section (1), the owner of such goods or the persons referred to in sub-section (1), shall, in addition be liable to any duty and charge payable in respect of said goods'. In the case of Sumant Sood Vs CC, Chennai [2001 (134) ELT 817 (Tri- Del)] the Co-ordinate Bench of the Tribunal had occasion to decide a similar issue. The Tribunal held that the appellant/the person in whose possession the vehicle was seized is liable to pay the customs duty and the redemption fine. The relevant portion is reproduced as under: 8. Now we come to the question as to whether the Appellant is liable to pay duty on redemption of the car. We find ourselves unable to agree with the view taken by the West Zonal Bench in VXL India case. Relevant provisions of Section 28 are extrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in respect of the impugned car. 9. As the decision taken by us is contrary to the views expressed by the West Zonal Bench in VXL India Ltd., 2000 (122) E.L.T. 710 , the matter is referred to the Hon'ble President to constitute a Larger Bench to resolve the difference on the following aspect : Whether the owner of the goods or the person from whose possession or custody goods were seized is liable to pay duty leviable on goods ordered to be redeemed on payment of fine. The Tribunal while deciding the case of Sumant Sood (supra) disagreed with the judgment passed in VXL India Ltd., [2000 (122) ELT 710 (Tri)] and the matter was referred to a Larger Bench. The Larger Bench answered the question against the assessee. The Larger Bench relied upon the judgment of Hon'ble Supreme Court in the case of Jagdeesh Cancer Research Centre [2001 (132) ELT 257 (S.C.)] and answered the issue in favor of Revenue. In VXL India Ltd.,(Supra) the Tribunal took the view that when the importer is not known the person from whose possession the vehicle was confiscated cannot be held to be liable to pay the customs duty. The Tribunal in the case of Sumant Sood ..... X X X X Extracts X X X X X X X X Extracts X X X X
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