Use of false declarations attracts s.114AA penalty independently of confiscation fine and re-export option; duty liability persists.

JUDGMENT :

G. JAYACHANDRAN, J.

On being aggrieved by the Final Order dated 25.09.2018 passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai, this Appeal is filed by the Customs Department,

2. M/s Orion Enterprises, Mumbai, imported a 2016 year model vehicle (MY2017) RHD New Brand Cadillac Escalade SUV Luxury Collection 10 seater, 6.2 LTR, V8 Petrol Chassis No.1GYS4HKJ3GR342043. The importer declared the vehicle as an eight seater vehicle mentioning the seller as M/s Auto Group International (Pvt.) Ltd., Sri Lanka and declared the country of origin as Australia. In fact, on investigation conducted by the DRI, based on specific information, it was found that 2016 model “Cadillac Escalade SUV” with VIN No.1GYS4HKJ3GR342043, sold to M/s Bolton Motors Product Inc., Ontario, Canada, has been imported into India through Chennai Seaport by M/s Orion Enterprises, Mumbai, by altering the seating capacity from 8 (including driver) to 10 seater intentionally to classify the said vehicle under Customs Tariff Heading (in short “CTH”) 8702 and paid a lesser customs duty. The importer, having mis-declared the description of the vehicle, the country of origin of the vehicle and value had availed benefit of Notification No.12/2012, Central Excise dated 17/03/2012 by producing documents, such as, letter from M/s Auto Group International Private Limited, informing that the vehicle has been converted by them at Sri Lanka, as per the ADR compliance (ADR Approval No.48091 dated 01/11/2016), It is new vehicle and has not been registered for use in any country prior to its exportation to India and also a fabricated letter of Government of Australia to show ADR Approval. The Custom Department, having found gross violation of the import duty concession under the Custom Act, seized the vehicle on 07.04.2017. Statement of the partner of M/s Orion Enterprises was recorded. He had admitted the conversion of the vehicle increasing the seating capacity to avail the duty concession. The declaration made by the importer before the Sri Lankan Customs Authority was not the same declaration before the Indian Customs Authority.

3. The following discrepancies were found.:-

4. The adjudicating authority passed order-in-original on 21.12.2017 concluding that the importer has mis-declared the goods deliberately, hence, liable for action under Section 114AA of the Customs Act, 1962. The operative portion of the adjudicating authority order reads as below:-

“(a)I reject the declared description of vehicle as ‘CADILLAC ESCALADE ESV LUXURY COLLECTION 10 SEATS, 6.2 LTR, V8 PETROL CHASSIS with VIN No.1GYS4HKJ3GR342043’ imported vide bill of entry no.9023152 dated 24/03/2017 and re-determined as ‘CARDILLAC ESCALADE ESV LUXURY COLLECTION 8 SEATS, 6.2 LTR, V8 PETROL CHASSIS with VIN No.1GYS4HKJ3GR342043’;

(b) I reject the country of origin of the vehicle imported vide bill of entry No.9023152 dated 24/03/2017, declared as Australia and hold the country of origin as “USA”;;

(c) I reject the declared value of the imported motor vehicle at Rs.64,18,752/- as transaction value and re-determined as Rs.70,23,764/- (Rupees Seventy Lakh Twenty Three Thousand Seven Hundred and Sixty Four Only) under Section 14 of the Customs Act, 1962, read the Rule 3 of the CVR, 2007;

(d) I order confiscation of the imported Motor vehicle under Section