Custom, Excise & Service Tax Tribunal
Commissioner Of Customs (Acc & Import), ... vs Anil Kumar Agarwal on 13 January, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI. APPEAL NO. C/389/03-Mum (Arising out of Order-in-Appeal No. S/10-ADJ-196/02 ACC II-B (ADC(BB) 23/2002 Adj/ACC dated 06.08.2002 passed by Commissioner of Customs, Air Cargo Complex, Mumbai.) For approval and signature: Shri P.G Chacko, Honble Member (Judicial) ======================================================
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : Yes
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
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Commissioner of Customs (ACC & Import), Mumbai
Appellant(s)
Vs.
Anil Kumar Agarwal
Respondent(s)
Appearance:
Dr T. Tiju,
S.D.R.
For Appellant(s)
Shri George,
Advocate
For Respondent(s)
CORAM:
Shri P.G Chacko, Honble Member (Judicial)
Date of Hearing : 13.1.2010
Date of Decision : 13.1.2010
ORDER NO.
1. The respondent had imported a motorcycle gifted to him by his Australian friend. After he filed a Bill of Entry dated 1.7.02 for its clearance, the Customs authorities, on first-check examination, found the motorcycle to be reconditioned. The vehicle was found to have been manufactured in July 1998. The registration certificate indicated that the vehicle was registered in 2000. As per the EXIM Policy 2002-07, imports of second-hand vehicles were governed by the Licensing Notes under Notification No 4(RE-2001)/1997-2002 dated 31.3.2001 issued by the DGFT. According to these Notes, the imported vehicle should not be more than three years old and the importer should fulfill certain conditions. One of these conditions was that the importer should submit a certificate issued by a testing agency (notified by the Central Government) to the effect that the second-hand/used vehicle imported into India had been tested immediately before shipment to India and the vehicle conformed to all the Regulations specified in the Motor Vehicles Act, 1988 and the Rules made thereunder. Another condition was that the importer should submit a certificate issued by the testing agency to the effect that the second-hand/used vehicle had been tested immediately before shipment for export to India and also conformed to the original homologation certificate issued at the time of manufacture. There were certain other conditions also. Having found that the importer (respondent) had not fulfilled many of the above conditions in respect of the motorcycle, the Additional Commissioner of Customs ordered confiscation of the vehicle under Section 111 (d) of the Customs Act. However, an option to re-export the vehicle on payment of redemption fine of Rs 30,000/- within a period of one month was given to the importer. A penalty of Rs 5000/- was also imposed on him under Section 112 (a) of the Act. In an appeal filed by the respondent, the Commissioner (Appeals) took a lenient view considering the fact that the motorcycle was a gift from abroad. The appellate authority, accordingly, allowed its clearance for personal use in India on payment of appropriate duty of Customs alongwith fine and penalty. In other words, the appellate authority did not insist on re-export of the vehicle. However, the party was required to fulfill other terms and conditions of Notification No. 4(RE-2001)/1997-2002 dated 31.3.2001 ibid. In the present appeal, the department submits that the relevant conditions of the notification are not capable of being complied with. The appellant has specified these conditions, which are condition No. 1 (d) (i) and condition No. 1 (d) (iii) mentioned in the notification. According to the appellant, as these conditions cannot be fulfilled by the importer, he has no option other than re-export.
2. I have heard the learned SDR for the appellant and the learned Counsel for the respondent. The respondent has already paid fine and penalty determined by the adjudicating authority and sustained by the appellate authority. They are yet to pay the appropriate duty of Customs on the motorcycle. According to the learned Counsel, the respondent is entitled to clear the motorcycle on payment of duty and use it in India, in terms of the order of the Commissioner (Appeals). This claim has been contested by the learned SDR, who submits that, as per the impugned order, the respondent has got to comply with all the relevant conditions stipulated in Notification No 4(RE-2001)/1997-2002 dated 31.3.2001. It is also submitted that atleast two conditions are not capable of being fulfilled, at this juncture. On a perusal of the said conditions, which have been specified in the grounds of appeal, I find that these conditions had to be complied with by the importer at the time of importation with reference to the pre-shipment condition of the vehicle. The pre-shipment condition of the vehicle is now a matter of history and nothing can be done by the respondent today to ensure that the motorcycle in its pre-shipment condition, conformed to the homologation certificate issued by the manufacturer or to the specifications stipulated under the relevant Indian Law (The Motor Vehicles Act /Rules, 1988). Obviously, the conditions cannot be fulfilled by the respondent and, therefore, the direction of the lower appellate authority, contained in the last sentence of the impugned order, is incapable of being carried into effect. The only consequence of non compliance with this direction of the lower appellate authority or, in other words, non-fulfillment of other terms and conditions of the notification by the respondent is that the motorcycle will have to be re-exported. Having accepted the order of the Commissioner (Appeals), the respondent is liable to re-export the motorcycle and the departmental authorities are liable to enable him to do so. The Appellate Commissioners order for personal use of the motorcycle by the respondent in India is liable to be set aide. To this extent, this appeal is allowed.
(Pronounced and dictated in the Court) (P.G. Chacko) Member (Judicial) rk 3