GEETHA PREMRAJ Vs. COMMISSIONER OF CUSTOMS, COCHIN

JUDGEMENT

(1.) THIS appeal is directed against the adjudication order dated 30 -7 -2001 passed by the Commissioner of Customs, Customs House, Cochin. Under the order the Commissioner confiscated under Section 111(d) of the Customs Act, a Mitsubishi Pajero Car imported by the appellant. However, an option to redeem the car on a payment of fine of Rs. 50,000/ - was allowed. A penalty of Rs. 20,000/ - has also been imposed on the appellant under Section 112 of the Customs Act. In addition, it has been ordered that the car be assessed based on the ex -factory price in Japan as per the Red Book after allowing admissible reduction of 8% towards domestic tax/VAT and 15% towards trade discount.

(2.) THE appellants contend that the adjudication order is not sustainable in law or on the facts of the case. With regard to the confiscation, it is their submission that the show cause notice had proposed confiscation of the car for violation of the terms of DGFT P.N. No. 3 (RE -2000)/1997 -2002, dated 31 -3 -2000 as well as under Section 111 (m) of the Customs Act for undervaluation. The appellants have pointed out that the Commissioner had held in the order that confiscation under Section 111(m) of Customs Act for the act of misdeclaration of value is not sustainable [Para 6(ii) of the order]. With regard to the confiscation under 111(d), it is the contention of the appellant that under Public Notice No. 3, dated 31 -3 -2000, persons who had lived abroad for more than 2 years and returning home were entitled to import a car subject to the condition that imported car should not be sold for 2 years. It is pointed out that the appellant had lived abroad since 1989 and, therefore, was clearly eligible for the import. The finding on violation of Public Notice No. 3 is on the basis that the appellant was not the actual importer; but someone else had imported the car in the appellants name. The appellant points out that this allegation is made merely on the basis of a retracted statement of the appellant herself and that, that statement had been obtained under duress. It is further pointed out that the appellant had affixed her signature on the purchase invoice for the car and that signature has not been shown to be not hers. It has also been emphasized that since Public Notice prescribed no further conditions for eligibility to import than the required period of stay abroad, the entire investigation was unjustified.

(3.) WITH regard to the valuation of the car, it is the appellants submission that the invoice price represented the full consideration for the car and there was no justification for discarding that price and adopting the price from the Red Book. It is also submitted that this value compares favourably with the list price of the car. It is further pointed out that the Commissioners, order has gone even beyond the valuation proposed in the show cause notice inasmuch as it has taken an ex -factory value of 3935000 Yen for the Car as against the value of 3050000 Yen proposed in the Show Cause Notice. During the hearing of the case, learned Counsel for the appellant emphasized that it is well settled that the adjudicating authority cannot go beyond the scope of the Show Cause Notice. On the valuation it is also a grievance of the appellant that the authorities have made separate addition towards accessories while the price of the accessories remained included in the price of the car. The learned Counsel also submitted that the Commissioners Order for enhancement of the assessable value based on the Red Book price was contrary to his finding that there is no violation of Section 111(m) of the Customs Act. The appellant have relied on the decision of the Tribunal in the case of Collector of Customs v. Prabha Mohan [1999 (113) E.L.T. 965] in support of the contention that no addition is to be made towards accessories. In the light of these submissions, the appellant has prayed that the impugned order may be set aside with the direction to assess the car at the invoice price and to return to the appellant excess duty and other amounts collected from her.