Per M.V. Ravindran : This appeal is directed against the order-in-original dated 18.04.2007 vide which imported car was confiscated and an option of redeeming the same was given on payment of redemption fine for re-export and penalty was imposed on the appellant.

2. The relevant facts that arise for consideration are that the appellant imported a 'Toyota Vehicle' and arranged to file Bill of Entry for clearance of the said car. As per examination instructions, the examining officer on verification, found that the imported vehicle did not comply with the conditions as laid down in the Import Licensing Note to Chapter 87 of the ITC (HS) Policy, more specifically para 2 (II) (c) which required the importer to file a "homologation certificate". In the absence of such homologation certificate the car was seized on the ground that there was violation of the ITC (HS) policy as the said car was prohibited and also on the ground that there was mis-declaration of the value and description. The appellant waived the issuance of the show cause notice and participated in the adjudication proceedings. After granting a personal hearing to the appellant the adjudicating authority came to conclusion that the imported car is liable for confiscation under Section 111 (d) and 111 (m) of the Customs Act, confiscated the car but gave an option of redeeming the same for re-export and also imposed penalty on the appellant under Section 112 of the Customs Act. Aggrieved by the said order the appellant has preferred this appeal.

3. The learned advocate appearing for the appellant submits that they are not challenging the valuation part of the imported car and submits that the valuation as arrived by the revenue is correct and have paid duty in September 2006 itself, despite this, the car is still in warehouse. It is his submission that they are challenging the confiscation of the vehicle on non-production of the homologation certificate. It is his submission that the said certificate is required to be produced by the dealers who are dealing in the imported cars and those who are actual users. It was submitted that the requirement of homologation certificate was not insisted upon from the individual importers and the importers who are importing the same car under EPCG scheme. It is the submission that the current appellant being a Pvt. Ltd. company cannot be put in a disadvantageous situation. It was submitted that the adjudicating authority has erred in passing the final order in as much that the adjudicating authority has confiscated the car, imposed fine in lieu of the confiscation but for re-export only. It is his submission that once the adjudicating authority has allowed the redemption, it should be allowed for the home consumption and not for re-export. He also submitted that this issue is settled by the judgment of the Hon'ble High Court of judicature at Bombay in the case of Phoenix Overseas P. Ltd. Vs. Union of India as reported at 2003 (162) ELT 25 (Bom.). It is submitted that the revenue is holding the same view in respect of the cars those are imported without homologation certificate were after confiscation cleared for home consumption on payment of fine in lieu of confiscation. It was submitted that the fine and penalty imposed on the appellant is excessive, as the appellant has imported the car for his personal use.

4. The learned SDR submits that the confiscation of the car under Section 111 (d) is correct, as the said car would be a prohibited article in the absence of homologation certificate. It was submitted that there is specific requirement for submission of the homologation certificate, which is indicative of roadworthiness of the car that is being imported. It was submitted that appellant having not produced the same has violated the conditions of the ITC (HS) policy hence the confiscation of the car as being prohibited is correct. It was submitted that the value declared by the appellant is also not in accordance with the book