ALBERTO BESTONSO Vs. COMMR. OF CUS. (I), JNCH

JUDGEMENT

(1.) BRIEF facts of the case are that based upon an intelligence, officers of DRI searched the residence of the appellant and after making various enquiries, a show cause notice was issued to the appellant. The appellant has imported a car namely Lamborghini Murcielago Roadster LP640 (vin No. ZHWBE47S08LA03188). The said car was imported from M/s. Hyperformance Cars Ltd., Bedfordshire, U.K. The said firm belongs to one Shri Lorenzo Bestonso, brother of present appellant. The appellant produced an invoice No. 1021, dated 20 -7 -2008 and filed bill of entry No. 667510, dated 3 -11 -2008 declared CIF value as GBP 1,75,000 (equivalent to Rs. 1,39,56,250/ -). The case of the Revenue is that the value declared in the said invoice is not correct and the value has been under -declared. Further, the Revenue has made a case that the said vehicle was registered abroad before import and is therefore an old and used car and therefore, they are not be eligible for the benefit of Notification No. . The case was adjudicated vide order dated 12 -4 -2010 wherein the Commissioner rejected the declared value and further the benefit of notification 21/2002 was denied as the vehicle was registered prior to its importation thereby not fulfilling the condition stipulated in the said notification. Further, the vehicle was confiscated under Section 111(m) of Customs Act, 1962 read with Rule 2(c), Rule 11; Rule 12, Rule 14(1) and Rule 14(2) of the Foreign Trade (Regulations) Rule, 1993 for under valuation. The appellant was given an option to redeem the same on payment of fine of Rs. 5.50 lakhs and was also imposed a penalty of Rs. 2.20 lakhs under Section 112 of Customs Act. The appellant did not want to clear the said vehicle on enhanced value but wanted to re -export. After prolong litigation and direction by the CESTAT, the case was re -adjudicated and the learned Commissioner vide the impugned order dated 9 -4 -2012, rejected the declared value and redetermined the same. The benefit of Notification No. was also denied. The vehicle was confiscated under Section 111(m) of the Customs Act for mis -declaration of the value and also permitted to export the same on payment of redemption fine of Rs. 5.50 lakhs. A penalty of Rs. 2.20 lakhs was also imposed under Section 112 of the Customs Act. Aggrieved by the said order the appellant is before us.

(2.) HEARD both sides.

(3.) THE learned AR reiterated the findings in the impugned order as also the earlier order. He further stated that the appellant's contention that the value should be determined on the basis of value of similar goods being imported by the dealer in India is incorrect, for the simple reason that the dealers are required to maintain show room, provide after -sale service, spend on sales promotion, advertisement etc. In addition they also buy vehicle in large quantity. Import by the appellant and dealers are not comparable. The learned A.R. stated that in any case the appellant has not produced any dealer invoice to examine and comment on the same. The learned A.R.'s contention relating to determining the value as per the C.B.E. & C.'s "instruction was that, when the actual transaction value based upon actual invoice is available there is no reason to go for any other assessment procedure. This would be against Section 14 of the Customs Act, 1962. Other assessment guidelines are relevant when vehicles have been purchased abroad long back by importer or transactions are between two individuals. In such circumstances, the C.B.E. & C.'s guidelines are used and the value so arrived is compared with the invoice or the declared value and in case the invoice or declared value is less than as per the guidelines, cars are assessed as per these guidelines. In the present case, the original price at which the brother of the appellant and supplier has purchased the car is already available. The copy of the said invoice was given to DRI officials by their source (the informer). Further, the invoice and details therein has been confirmed by the manufacturer of the vehicle. Original of such invoice will be available with the supplier i.e. brother of the appellant. In any case, the appellant and the supplier are related persons and there was no reason for the appellant not to produce the original invoice. Even when the goods were seized, the appellant could have produced the original invoice and other payment particulars to put the matter to rest.