Custom, Excise & Service Tax Tribunal
Mr. Hassan Abdul Aziz Shaikh vs Cc, Cochin (Vice Versa) on 22 March, 2010
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench Division Bench
Court I
Date of Hearing:25/02/2010
Date of decision:..
Appeal No.C/556, 620/09
(Arising out of Order-in-Appeal No.56/09 dt. 28/8/2009
passed by CC(Appeals), Cochin)
For approval and signature:
Honble Mr. M.V.Ravindran, Member(Judicial)
Honble Mr. P.Karthikeyan, Member(Technical)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether their Lordship wish to see the fair copy of the Order?
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
Yes
Mr. Hassan Abdul Aziz Shaikh
..Appellant(s)
Vs.
CC, Cochin (vice versa)
..Respondent(s)
Appearance Mr.P.A. Augustin, Advocate for the assessee.
Mr.M.Vivekanandan, SDR for the Revenue.
Coram:
Honble Mr. M.V.Ravindran, Member(Judicial) Honble Mr. P.Karthikeyan, Member(Technical) FINAL ORDER No._______________________2010 Per M.V.Ravindran Appeal No.C/556/09 is filed by the assessee against the impugned order-in-appeal while appeal No.C/620/09 is filed by the Revenue against the very same impugned order. Since both the appeals are challenging the findings of the same impugned order, they are being disposed by a common order.
2. The relevant facts that arise for consideration are that the assessee/appellant had filed bills of entry dt. 18/10/2007 for clearance of one used Toyota Landcruiser. Lower authorities on inspection found that the said vehicle is liable for confiscation as the engine number and chassis number which were declared were different and the make of the car is not the same as was declared by the assessee/appellant. Investigations were conducted and on conclusion of the investigation, show cause notice was issued for enhancement of the value of the car on the ground that the year of make of car is 2003. The appellant/assessee contested the show cause notice before the lower authorities . The adjudicating authority did not accept the contentions of the appellant and came to the conclusion that the car is made in the year 2003, enhanced value and demanded appropriate duties. Adjudicating authority also confiscated the said car, gave an option to redeem the same on payment of redemption fine and imposed penalty on the assessee/appellant. Aggrieved by such an order, assessee/appellant filed an appeal before the ld. Commissioner(Appeals) who upheld the Order-in-Original to the extent it enhanced the value of the car but reduced the redemption fine and penalty and also set aside the no sale condition following various decisions of this Bench and in the first round of litigation. Aggrieved by such an order of upholding of enhancement of value, confiscation and penalty, appellant is before us. The Revenue is also aggrieved by the said order on the ground that the appellant should not be allowed to sell the car as the said car is imported in violation of the condition of the Exim Policy.
3. Ld. Counsel draws our attention to the various documents annexed with the appeal memorandum. He would submit that the appellant has sought for and was permitted to lead an experts opinion. He would draw our attention to the expert opinion/report. He would submit that the adjudicating authority has not considered the said expert opinion in it entirety. He would submit that the car which was imported by the appellant was dis-continued from the line by M/s. Toyota Motors in the year 2006. He would submit that the interiors of the car which was evaluated by the expert, clearly indicate that this car could not be manufactured in the year 2003, as was held by the lower authorities . It is his submission that the valuation as adopted by the adjudicating authority is excessive and should have been on the basis that the car is of 2000 and not of 2003.
4. Ld. SDR submits that the appellant had changed the chassis number and the engine number in the car in order to import a vehicle which was not used by him earlier from the country. It is his submission that the appellant had tried to defraud the Revenue by indicating the wrong chassis number and engine number to show that the car was manufactured in the year 1998, when it was confirmed from the main dealer of Toyota clearly, they indicated that the engine number and chassis number which were sent to them for verification were of the car manufactured in the year of 2003. As regards Revenues appeal, it is his submission that no sale condition which has been set aside by the ld. Commissioner(Appeals) should be brought in, as the said car was imported in violation of the Exim Policy.
5. We have considered the submissions made at length by both sides and perused the records. On perusal of the records, we find that it is the contention of the assessee/appellant that the car is manufactured in the year 1998 and at the most year 2000, when the said model was dis-continued. We find that the experts opinion which was lead by the appellant, after being granted permission by the Revenue, has relied upon the interiors and various other para-meters of interiors, to come to a conclusion that the car which was imported could not have been manufactured by M/s. Totota in the year 2003. We find strong force in the contention raised by the ld. Counsel for the appellant that both the lower authorities may have erred in coming to the conclusion that the said car is of 2003 make without appreciating the experts opinion. We also find from the records that the Revenue authorities have not cross-verified the experts opinion with M/s. Toyota, manufacturers of the car. In such a situation without expressing any opinion on the merits of the case, we set aside the impugned orders and remand the matter back to the adjudicating authority to re-consider the issue afresh and consider the defence of the assessee in form of the experts opinion.
6. At this juncture, ld. Counsel submits that the lower authorities are refusing to release the car to the appellant. We find that the appeal of the Revenue is against setting aside of the no sale condition as imposed by the ld. Commissioner(Appeals). While coming to such conclusion, ld. Commissioner(Appeals) has relied upon the decision of the Tribunal in Final Order No.771-782/2008. Departmental representative was not able to bring on record whether the Revenue has filed an appeal against the said order. The said order clearly indicate that once the goods are allowed to be redeemed by way of imposing redemption fine, no sale condition cannot be imposed by the lower authorities. In view of this, the impugned order to the extent it is holding that no sale condition cannot be put is correct and upheld. In view of this, lower authorities are directed to release the car to the appellant on execution of bond along with appropriate Bank guarantee for the differential duty, redemption fine, till the matter is disposed by the lower authorities .
7. The impugned order is set aside to the extent as indicated hereinabove and matter remanded to the adjudicating authority to re-consider the issue as per the direction given hereinabove. Appeals are disposed off accordingly.
(Pronounced in court on ..) (P.KARTHIKEYAN) Member (Technical) (M.V. RAVINDRAN) Member (Judicial) Nr 5