Bombay High Court
Commissioner Of Customs Ns V vs Modern Trading And Logistics Llp on 14 August, 2024
Author: K.R. Shriram
Bench: K.R. Shriram
Digitally
signed by
2024:BHC-OS:12522
GAURI AMIT
GAURI GAEKWAD
AMIT Date:
1/5 923.CUAPP-18-2023.doc
GAEKWAD 2024.08.17
10:56:40
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CUSTOMS APPEAL NO.18 OF 2023
WITH
INTERIM APPLICATION (L) NO.14158 OF 2023
IN
CUSTOMS APPEAL NO.18 OF 2023
Commissioner of Customs, )
JNCH, Nhava Sheva-V JNPT, Customs House, )
District- Raigad, Maharashtra-400 707 ) ....Appellant
V/s.
Modern Trading & Logistics LLP )
Shop No.4, Patel Compound Body Lane, Opp. Tardeo )
RTO, Mumbai Central, Mumbai 400 034 ) ....Respondent
----
Mr. Mataprasad Sharma i/b. Ms. Maya Majumdar for appellant/applicant.
Mr. Mutahhar Khan a/w. Mr. Kenneth Martin i/b. Advani Law LLP for
respondent.
----
CORAM : K.R. SHRIRAM &
JITENDRA JAIN, JJ.
DATED : 14th AUGUST 2024
ORAL JUDGMENT (PER K.R. SHRIRAM, J.) :
1 Mr. Khan states that respondent has (a) paid duty of
Rs.18,16,713/-, (b) submitted Bond equal to value of goods including duty
amount and (c) submitted Bank Guarantee equal to 50% of duty. Mr. Khan,
on instructions states that the Bank Guarantee has been renewed and will
be kept renewed as per the requirements of provisional release. Statement
accepted as undertaking to this Court.
2 In view of the statement made by Mr. Khan, Mr. Sharma states
that the interim application can be disposed.
Gauri Gaekwad
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3 Interim application accordingly disposed.
4 Respondent had filed a bill of entry dated 3rd January 2019 for
clearance of one Motor Vehicle "Toyota Hiace Commuter Van 2750cc"
having invoice value of USD 40,200 (C&F). The assessable value of the
vehicle was Rs.28,74,545/- having declared duty of Rs.18,16,713/-. The
vehicle was seized by SIIB(I) on 6 th February 2019 on the belief that the
vehicle was liable for confiscation under Section 111 (d) of the Customs
Act, 1962 (the Act). The vehicle was examined by SIIB(I) and since the
preliminary investigation revealed it to be a second hand vehicle and not
new as declared by the Importer, appellant held that the import is in
violation of the policy condition (1)(II)(d)(iv) of Chapter 87 of the Customs
Tariff Act, 1975 (the Tariff Act).
5 Respondent requested for provisional release of the vehicle on
payment of duty. By a letter dated 15th February 2019 the Deputy
Commissioner of Customs informed the appraising group with copy to
respondent that they have no objection for provisional release of the vehicle
as per provisions of Circular No.35/2017-Cus dated 16 th August 2017 on
payment of customs duty of Rs.18,16,713/- and on other conditions
mentioned therein.
6 Aggrieved by the conditions imposed vide letter dated
15th February 2019, respondent filed an appeal before the Commissioner
(Appeals), JNCH, which was rejected by an order in appeal dated 15 th May
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2019. Against the said order, an appeal was preferred to the Customs Excise
and Service Tax Appellate Tribunal (CESTAT), which appeal was allowed by
an order dated 7th December 2022. The CESTAT held that the inclusion of
condition (1)(II)(d)(iv) of Chapter 87 of the Tariff Act was redundant and
superfluous and allowed the appeal by expunging the said condition as
requirement of provisional release. Aggrieved by the said order, this appeal
has been preferred.
7 Appellant proposes the following two substantial questions of
law :
A) Whether the CESTAT was right in deciding that
fulfilment of policy condition (II)(iii) of Chapter 87,
i.e., on arrival of vehicle at the Indian Port but
before clearance for home consumption, submit the
vehicle for testing by the Vehicle Research and
Development Establishment, Ahmednagar of the
Ministry of Defence, Govt of India or Automotive
Research Association of India, Pune as redundant?
B) Whether the CESTAT was right in relying upon
decision of High Court of Kerala in Commissioner of
Customs v. Ankineedu Maganti [2012 (275) ELT
551(Ker.)]?
8 It is true that separate policy conditions have been notified for
new vehicles and for used vehicles. The condition, which is subject matter
of the appeal, came up for consideration before the CESTAT in Ankineedu
Maganti v/s. Commissioner of Customs, Cochin1, which was subsequently
1 2010 (262) ELT 484 (Tri-Bang.)
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upheld by the Hon'ble Kerala High Court in Commissioner of Customs vs.
Ankineedu Maganti2. The Court held that the type of approval certificate
mentioned in the policy condition of Chapter 87 to be issued by the Vehicle
Research and Development Establishment (VRDE), Ahmednagar under the
Ministry of Defence or at the Automotive Research Association of India
(ARAI), Pune was only to ensure that the import of any goods, post
clearance, would not be in breach of the essential requirements of law
subject to which motor vehicles will be registered for operation on roads.
The policy condition is not just for the sake of regulating imports and
exports of the country but to ensure that the imported goods are compliant
with the regulatory measures and that the vehicle complies with all the
stipulations for operation and running on Indian roads. We would agree
with the view expressed by the Hon'ble Kerala High Court in Ankineedu
Maganti (Supra).
9 In the case at hand, the CESTAT not only followed the
judgment of the Hon'ble Kerala High Court but also noted the factual aspect
that the vehicle has already been registered with the competent authority
under the Motor Vehicles Act, 1988. If the vehicle did not comply with the
stipulations for operation and running on Indian roads, certainly the vehicle
would not have been registered under the Motor Vehicles Act, 1988.
2 2012 (275) ELT 551 (Ker.)
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10 In the circumstances, in our view, no substantial question of
law arises.
11 Appeal dismissed.
(JITENDRA JAIN, J.) (K.R. SHRIRAM, J.)
Gauri Gaekwad
