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2019 (9) TMI 596

..... 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 20 .....

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..... ity had also found that in respect of the goods imported and cleared under Baggage Declaration No. 3079 dated 01.08.2018, the appellant had declared only very lesser value and therefore the same was also re-determined and differential duty was confirmed. 3. Heard both the parties and perused the records. 4. Learned Counsel for the appellants submitted that the appellant was in abroad for 28 years and for his final settlement in India brought house hold items and a used Honda motor cycle (bike) under Transfer of residence (TR). House hold items were subject to adjudication and released on payment of fine and penalty. As per the impugned order, the adjudicating authority had rejected the value assessed by them initially and also rejected the value of the used bike imported by the appellant. Learned Counsel during the course of argument submitted that the following issues arise in the present appeal: (i) Whether second adjudication proceedings initiated vide impugned order related to house hold items brought by appellant is sustainable since it was released at the time of import by paying additional duty, fine and penalty. (ii) Whether appellant is entitled to claim the benefit of TR. .....

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..... estriction with regard to the motor vehicle. 4.2. As far as next issue is concerned, he further submitted that as per the various documents produced by the appellant including sale letter issued by the owner of the goods M/s Al Zulal General Land Transport supported with receipt voucher clearly shows the sale of the vehicle on 07.03.2017 for an amount of 24500 Dhs. The possession certificate issued by RTA Dubai under Government of Dubai shows the previous owner of the vehicle i.e. M/s Al Zulal General Land Transport and transfer certificate shows that the licensing authority issued transfer certificate in the name of the appellant on 08.03.2017. He further submitted that these documents have been issued by the sovereign authority and there is no allegation by the Customs that the said documents are not genuine. He further submitted that the vehicle was imported under Bill of Entry dated 31.07.2018 which clearly shows that it was in his possession for more than a year therefore the appellant is eligible to claim TR. 4.3. The next submission of the Learned Counsel is that the appellant declared the value of the bike as ₹ 4,79,408/- and the Customs duty payable by the appellant .....

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..... prohibited goods. He referred to the decision of this Tribunal in the case of Gurudev Udham Vs CC, Cochin, Final Order No. 21413/2017 dated 09.08.2017 wherein it has been held that there is no reason to order confiscation of motor vehicles. 5. On the other hand, Learned AR defended the impugned order. 6. After considering the submissions of both the parties and perusal of the material on record as well as the various decisions relied upon by the appellant, we find 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 in view of the judgment of the Hon ble Apex Court in the case Mohan Meakin Ltd (supra). Further, we find that 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, we find that the finding of the adjudicating authority t .....

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..... ms Act, 1962 and on the basis of data available in India. If the phrase the transaction value‟ used in Rule 4 were not limited to the particular transaction then the other Rules which refer to other transactions and data would become redundant. 14. It is only when the transaction value under Rule 4 is rejected, then under Rule 3(ii) the value shall be determined by proceeding sequentially through Rules 5 to 8 of the Rules. Conversely if the transaction value can be determined under Rule 4(1) and does not fall under any of the exceptions in Rule 4(2), there is no question of determining the value under the subsequent Rules. 6.1. Further, we find that as per the settled law, 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 no .....

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