TMI Blog2019 (9) TMI 596X X X X Extracts X X X X X X X X Extracts X X X X ..... urther, 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 2018 will ₹ 5,99,127/- which is very close to the declared value ₹ 4,79,408/- whereas the Customs had adopted an imaginary value of ₹ 19, 67,895/- based on some insurance documents filed in abroad by mistake by the appellant. Under-valuation - HELD THAT:- 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 not brought any material on record to show that the documents produced by them are not genuine docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso 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. (iii) Whether the bike was in possession of appellant for one year to claim the benefit of TR. (iv) Whether the allegation of undervaluation of house hold items and bike just based on the declaration by mistake in insurance policy issued when the bike was in abroad is sustainable. (v) If the bike is found liable for confiscation, whether it can be ordered for absolute confiscation. 4.1. Learned Counsel further submitted that the appellant had imported the house hold goods by availing the benefit of TR and the goods were subject to valuation by adjudicating authority at the time of import. After proper assessment of the goods brought b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 is ₹ 8,09,241/- but the authorities, in the impugned order, has assessed the value as ₹ 19,67,895/- and the duty demand for the bike is ₹ 33,21,807/-. He also submitted that the on road price of used 2012 model bike in 2018 will be ₹ 52,89,702/- whereas the same brand new motor bike GL 1800 available in India and the on road price is ₹ 26,88,000/- which includes cost of its import, Customs duty @ 169% road tax and other expenses. He further submitted that since the bike is manufacture by Honda and any person can ascertain the price of bike by searching on internet but the Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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, we find that the appellant has proved on record by various documents issued by the sovereign authority in Dubai that he purchased the said vehicle from M/s Al Zulal General Land Transport on 07.03.2017 and transfer certificate was issued in the name of the appellant on 08.03.2017 and he has imported the said vehicle vide Bill of Entry dated 31.07.2018 which clearly shows that he was in possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptions 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 not brought any material on record to show that the documents produced by them are not genuine document and that there was some transfer of illegal considerations from the appellant to the seller in Dubai. 7. In view of our discussion above, we are of the considered view that the impugned order is not sustainable in law and therefore we set aside the same and direct the Customs authority to release the said vehicle on payment of Customs duty as per the declared value of the bike. The appeal is accordingly al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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