Customs, Excise and Gold Tribunal - Delhi
M.S. Shoes East Ltd. vs Commissioner Of Customs on 28 January, 2004
Equivalent citations: 2004(166)ELT113(TRI-DEL)
ORDER V.K. Agrawal, Member (T)
1. In this appeal filed by M/s. M.S. Shoes East Limited the issue involved is whether motor car imported by them is liable for confiscation.
2. Shri Krishna Kant, learned Advocate, submitted that the Appellants had imported a second-hand Rolls Royce Corniche IV car on 22-12-1995 valued at 75000 Pounds against a valid import licence No. P/W/0548548, dated 13-1-95 issued by the Director General of Foreign Trade; that initially the Customs Department held the car to be more than 3 years old from the date of registration pointing out that the date of shipment of the car would be taken to be the date given on the Bill of Lading and not the date on which the car was received by the shipping company for shipment; that the delay was got condoned from D.G.F.T. in June, 1998; that subsequently the Customs Department under letter dated 4-7-98 directed them to seek clearance of the impugned car from Ahmedabad as import licence was registered over there or to put up the release advice so issued by the Asstt. Commissioner of Customs, Ahmedabad on 28-8-98; that now the Commissioner of Customs under the impugned Order had confiscated the car in question with an option to redeem the same on payment of redemption fine of Rs. 10 lakhs besides imposing a penalty of 5 lakhs on the ground of violation of Section 7 of the Foreign Trade (Development and Regulation) Act, 1992 and on the ground that the car come within the purview of prohibited goods. The learned Advocate further submitted that Section 7 of Foreign Trade Act refers to Importers and Exporters Code No. and provides that no person should make any import or export except under an Importer-Exporter code number granted by the D.G.F.T.; that in the present matter the Appellants are having IEC No. 0588067601 which is clearly mentioned on the bill of entry and import licence; that accordingly there was no violation of the provisions of Section 7 of the Foreign Trade (Development and Regulation) Act by them. He also mentioned that the imported car by no stretch of imagination can be put in the category of prohibited goods as the import of car has not been banned even though it is placed in negative list as the import of the car can be made under import licence; that as the car has been imported under Special Import licence issued by the D.G.F.T. it cannot be called that car has been imported against any prohibition; that if the release advice had not been received by the Customs Department at New Delhi from Ahmedabad, the Department should have ascertained the fact from Asstt. Commissioner of Customs, Ahmedabad who had issued the release advice; that similarly if the adjudicating authority found that there was any difference in the endorsement made on the two copies of the import licence, an opportunity should have been given to the Appellants to produce the original copy of the import licence. Finally the learned Advocate submitted that as the car has been imported in 1996 and it is lying with the Customs they are eligible for depreciation of the value of the car for the purpose of levying Customs duty. He has relied upon the decision in the case of Garden Silk Mills Ltd. v. UOI - 1999 (113) E.L.T. 358 (S.C.) = (1999) 8 SCC 744 wherein it has been held by the Supreme Court that the value for the purpose of Customs duty will have to be determined by the Customs Authorities which value can be more and at times even less than as indicated in the documents of purchase and sale. It has also been mentioned by him that import of goods commences when the goods cross into the territorial waters of India, but it is completed only when the goods are cleared after payment of duty and becomes part of mass of goods within the country. He relied upon the decision in the case of Apar Pvt. Ltd. and Ors. v. UOI and Ors. - 1985 (22) E.L.T. 644 (Bom.).
3. Countering the arguments Shri V. Valte, learned SDR, submitted that paragraph 217A(e) of the Export-Import Policy provides facility of import of car by the Export Houses/Trading Houses, etc. on Special Import licence issued by the licensing authority concerned; that the adjudicating authority has given a specific finding in the impugned Order that neither the original licence, nor the release advice had been received by the Customs Department and that only photocopy of release advice and photocopy of import licence had been forwarded; that the adjudicating authority also found difference in the endorsement of the back side of the photocopy of the licence besides observing that the impression of the round seal of the D.G.F.T. on the two copies did not match. He finally submitted that the Appellants have not raised the question of depreciation in value before the adjudicating authority at all, and therefore, this aspect cannot be first time raised by them before the Tribunal.
4. We have considered the submissions of both the sides. A perusal of the photocopy of Bill of Entry brought on record by the Appellants reveals that import licence No. P/W/0548548 was presented with Bill of Entry filed by the Appellants for the clearance of the car in question. The Appellants under their letter dated 17-1-97 had requested D.G.F.T. to condone the delay of 19 days and in the said letter they had mentioned the licence No. under which they were permitted by the D.G.F.T. to import a car. The D.G.F.T. under letter dated 4-6-98 communicated the decision of the Policy Relaxation Committee to condone the delay of 19 days for shipment of second-hand car. A copy of the said letter was also endorsed to the Customs Department (ICD), New Delhi. The Appellants have also brought on record a letter dated 4-7-98 from the Asstt. Commissioner (ICD), Tughlakabad wherein the licence issued to the importer has been clearly mentioned and they have been directed to put up release advice from Ahmedabad since the licence was registered at Ahmedabad. Subsequently the Asstt. Commissioner of Customs, Ahmedabad had issued the release advice which is addressed to the Asstt. Commissioner (ICD), Tughlakabad. This release advice is in respect of import licence mentioned in the Bill of Entry. In view of all these correspondence with D.G.F.T. the Customs Department at New Delhi and Ahmedabad it cannot be claimed by the Revenue now that there is neither import licence nor release advice. If the Customs Department had not received the original release advice from their counterpart at Ahmedabad they should have checked the fact of issuing the release advice from the Customs Department at Ahmedabad. Similarly, if there was any doubt entertained by the Department about the licence produced by the Appellants the fact ought to have been verified from the licensing authority i.e. D.G.F.T. The Revenue, we observe, has not disputed the fact that the D.G.F.T had condoned the delay of 19 days which was earlier pointed out by the Customs. In view of this the car in question is not liable for confiscation. We accordingly set aside the confiscation and remand the matter to the jurisdictional adjudicating authority for releasing the car to the Appellants on payment of appropriate duty. The Appellants can raise the question of depreciation before the jurisdictional assessing authority. At this stage the learned Advocate for the Appellants requested that as the car is lying for more than 7 years with the Customs department the adjudicating authority may be directed to expedite to finalise the assessment expediously. We, therefore, direct the adjudicating authority to finalise the computation of duty within 4 weeks from the receipt of this Order.