Page 229 - ELT_1st July 2020_Vol 373_Part 1

2020 ] COMMISSIONER OF CUSTOMS, COCHIN v. HAMZA MOHAMMED KUNHI 139

by the Revenue against the impugned order dated 23-9-2008 passed by the
Commissioner (Appeals) whereby the Commissioner (Appeals) has allowed the
appeal of the importer and accepted the invoice value as assessable value and
has also reduced the redemption fine of Rs. 1,50,000/- (Rupees One Lakh Fifty
Thousand Only) and penalty of Rs. 50,000/- (Rupees Fifty Thousand Only). The
importer has also filed Cross-Objection No. 62/2009. Both the appeal and Cross-
Objection are being disposed of by this order.
2. Briefly, the facts of the present case are that the respondent-importer
filed a Bill of Entry No. 170639, dated 14-12-2005 for the clearance of ‘Toyota
Land Cruiser’ declaring the year of manufacture as 1998. The department on in-
vestigation found that the year of manufacture of the vehicle was 2003 and that
the respondent has not complied with the pre-import condition. A show cause
notice was issued on Shri Hamza Mohammed Kunhi proposing confiscation of
the vehicle under Section 111(d) and (m) of Customs Act, 1962 read with Section
3(3) of Foreign Trade (Development & Regulation) Act, 1992 and penalty under
Section 112. Finally the lower authority adjudicated the case vide Order-in-
Original No. 50/06 assessing the value of the car at Rs. 14,87,102/- (Rupees Four-
teen Lakh Eighty Seven Thousand One Hundred and Two Only) as a 2003 model
and imposing a fine of Rs. 4,40,000/- (Rupees Four Lakh Forty Thousand Only).
Penalty of Rs. 2,20,000/- (Two Lakh Twenty Thousand Only) was also imposed.
Aggrieved by the said Order the respondent preferred an appeal before the
Commissioner (Appeals), who in turn, vide Order-in-Appeal No. 291/07, dated
24-4-2007 upheld the Order passed by the lower authority and rejected the ap-
peal. The respondent herein, then, filed one appeal before the Hon’ble CESTAT
against the said Order-in-Appeal passed by the Commissioner (Appeals).
Hon’ble CESTAT through its Final Order No. 876/07, dated 6-8-2007 set aside
the impugned Order-in-Appeal and remanded the case to the original authority
for de novo after giving the respondent an opportunity for cross-examination of
the representative of the M/s. TKM within 4 months from the date of receipt of
the order. The lower authority took up the adjudication proceedings in conse-
quent to Hon’ble CESTAT, Bangalore’s said Final Order. Vide the above men-
tioned impugned Order the original authority rejected the invoice produced for
Toyota Land Cruiser, imported under above mentioned Bill of Entry and re-
determined the value of the car as Rs. 14,87,102/- (Rupees Fourteen Lakh Eighty
Seven Thousand One Hundred and Two Only) and also ordered to assess the
vehicle as 2003 model. He also ordered confiscation of the vehicle under Sections
111(d) and (m) of Customs Act, 1962 read with Section 3(3) of Foreign Trade
(Development & Regulation) Act, 1992. Redemption fine of Rs. 4,00,000/- (Ru-
pees Four Lakh Only) and penalty of Rs. 2,00,000/- (Rupees Two Lakh Only) was
also imposed. Aggrieved by the order of the original authority, the respondent
filed appeal before the Commissioner (Appeals) who allowed the appeal and
also reduced the redemption fine and penalty. Hence, the present appeal by the
Revenue.
3. Learned AR for the Revenue submitted that the impugned order
passed by the Commissioner (Appeals) is not sustainable in law as the same has
been passed without properly appreciating the facts and the evidence on record.
He further submitted that the Department conducted enquiries from the manu-
facturer of the vehicle the M/s. Toyota Motor Corporation, Japan which revealed
that the chassis number and engine number of the vehicle as declared by the im-
porter and physically found on the vehicle were not tallying. He further submit-
EXCISE LAW TIMES  1st July 2020  229