Custom, Excise & Service Tax Tribunal
Rasiklal Manikchand Dhariwal vs Cc (Import) Nhavasheva on 17 September, 2019
CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, MUMBAI
REGIONAL BENCH
Customs Appeal No. 85243 of 2013
(Arising out of Order-in-Appeal No. 777(Adj/Imp)/2012/JNCH/IMP-642
dated 28.12.2012 passed by Commissioner of Customs (Appeals),
JNCH, Nhava Sheva)
Shri Rasiklal Manikchand Dhariwal Appellant
78, Resham Bhavan, 7th floor,
Veer Nariman Road,
Churchgate,
Mumbai 400 001.
Vs.
Commr. of Cus. (Imp.), Nhava Sheva Respondent
Jawaharlal Nehru Custom House, Post Uran, Dist. Raigad, Sheva 400 707.
Appearance:
Shri Brijesh Pathak, Advocate, for the Appellant Shri Dharmendra Singh, Superintendent, Authorised Representative for the Respondent CORAM:
Hon'ble Mr. S.K. Mohanty, Member (Judicial) Hon'ble Mr. Sanjiv Srivastava, Member (Technical) FINAL ORDER NO. A/86626/2019 Date of Hearing: 07.06.2019 Date of Decision: 17.09.2019 PER: SANJIV SRIVASTAVA The appeal is directed against the order in appeal No 777(Adj/Imp)/ 2012/JNCH/IMP-642 dated 28.12.2012 of Commissioner Customs (Appeals), Nhava Sheva. By the impugned order Commissioner has upheld the order of Additional Commissioner Customs (import) Nhava Sheva dated 24.02.2012, holding as follows:
18. In view of the above I order that:
"a) The year of manufacture of the subject BMW Mini Cooper Car be taken as 2003 instead of 2001 as revealed
2 C/85243/2013 by the investigations by Economic Offence Wing, Crime Branch, Mumbai and also as declared before the RTO Authorities.
b) The declared invoice value and year of manufacture of the vehicle as per Invoice No 0327 dt 13.12.2003 of M/s Choice Motors, Dubai and the assessable value arrived at Rs 4,14,100/- as appearing in the Bill of Entry No 606984 dtd 28.04.2004 is also rejected.
c) The assessable value is redetermined at Rs 7,37,022/- on the basis of 2003 as the year of manufacture, after depreciation, with total applicable duty of Rs 11,53,513/- and differential duty liability of Rs 5,05,421/-. However the same cannot be recovered due to limitation under Section 28(1) of the Customs Act, 1962.
d) The vehicle detained by EOW/ Crime Branch, Mumbai with assessable value of Rs 7,37,022/- is confiscated under Section 111(m) and (o) of the Customs Act,1962 read with Section 11(i) of the Foreign Trade Development and Regulation Act, 1962. However it is permitted to be released to the present owner of the vehicle Shri Rasiklal Manikchand Dhariwal on payment redemption fine amounting to Rs 2,50,000/- under Section 125 of the Customs Act, 1962.
e) An amount of Rs 7,00,000/- is imposed as penalty on the importer, Shri Muthu Samy Mooper, the provisions of the Section 112(a), 112(b) and 114AA of the Customs Act, 1962.
f) An amount of Rs 1,00,000/- is imposed as penalty on Shri Rasiklal Manikchand Dhariwal, the present possessor and owner of the vehicle should not be imposed under the provisions of the Section 112(b) of the Customs Act, 1962."
2.1 There was no appeal filed in the matter by Shri Muthu Samy Mooper before the Commissioner (Appeal) and hence the issues adjudged against him by the adjudicating authority have become final. Also there is no 3 C/85243/2013 appeal before us by Shri Muthu Samy Mooper, hence we are only concerned with the appeal field by Shri Rasiklal Manikchand Dhariwal.
2.2 We have heard Shri Brijesh Pathak, Advocate for the Appellant and Shri Dharmendra Singh, Superintendent, Authorized representative for the revenue.
2.2 Arguing for the appellant learned advocate submitted that the facts leading to the present order in appeal are as follows:
Date Particulars 29.04.2004 Shri Muthu Samy Mooper filed B/E for
clearance of used BMW Mini One of 2001 model, seeking benefit of Transfer of Residence. Since the car of 2001 model was purchased by the importer only on 13.12.2003 imported on 29.04.2004 hence benefit of Transfer of Residence was not admissible. For misdeclaration car was proposed to be confiscated 05.05.2004 The importer waived the issuance of Show Cause Notice.
10.05.2004 Matter was adjudicated car was confiscated and allowed to be redeemed against redemption fine of Rs 1,00,000/- and penalty of Rs 25,000/- was imposed.
The importer complied with the order and deposited the re-determined duty, along with redemption fine and penalty and the car was released subsequently to the importer.
That subsequent to import the car was sold by the importer to the Appellant.
It is alleged that the year of manufacture 4 C/85243/2013 declared before RTO was 2003 whereas the year of manufacture declared before Customs was 2001.
08.10.2010 A show cause notice is issued to the Appellant amongst other seeking to re-determine the value, demand duty and impose penalty.
24.02.2012 The show cause notice was adjudicated and redemption fine of Rs 2.50 Lacs was imposed on the car and penalty of Rs 1 lakh on the Appellant under section 112(b) of the Customs Act, 1962 Relying on decision of Hon'ble Apex Court in case of Mohan Mekin Ltd [2000 (115) ELT 3 (SC)] contended that once the goods have been released after confiscation on payment of redemption fine they could not have again been confiscated. He also submitted that redemption fine has been imposed on goods which are not available for confiscation and hence is bad in law. Since the goods could not have been confiscated the order imposing penalty on the appellant is bad in law.
He also submitted that the penal proceeding against the appellant should abate as the appellant Shri Rasiklal Manikchand Dhariwal has expired. He also produced the death certificate issued by Pune Municipal Corporation.
2.3 Authorized Representative reiterated the impugned order.
3.1 We have considered the impugned order with the submissions made in appeal and during the course of argument.
3.2 Rule 22 of Customs Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 provides as follows:
"RULE 22. Continuance of proceedings after death or adjudication as an insolvent of a party to the appeal or application. --
5 C/85243/2013 Where in any proceedings the appellant or applicant or a respondent dies or is adjudicated as an insolvent or in the case of a company, is being wound up, the appeal or application shall abate, unless an application is made for continuance of such proceedings by or against the successor-in-interest, the executor, administrator, receiver, liquidator or other legal representative of the appellant or applicant or respondent, as the case may be :
Provided that every such application shall be made within a period of sixty days of the occurrence of the event :
Provided further that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period so specified, allow it to be presented within such further period as it may deem fit."
3.3 In the present case the appellant has expired on 24.10.2007. Till date no application for continuation of proceeding has been filed by or on behalf of the successor in interest or legal representative of appellants, hence the appeal abates in terms of the Rule 22.
4.1 Thus appeal filed abates in terms of Rule 22 of Customs Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982.
(Order pronounced in the open court on 17.09.2019) (S.K. Mohanty) Member (Judicial) (Sanjiv Srivastava) Member (Technical) tvu