2008 (6) TMI 388 - AT - Central Excise

Stay/Dispensation of pre-deposit - Valuation - Evidence - Statement, confessional statement - Penalty

Summary

Issues:
1. Challenge against demand of duty, fine, and penalty by M/s. Em Pee Bee International.
2. Challenge against penalty imposed on Shri N.C. Alexander.
3. Authentication of computer printouts as evidence under the Diplomatic And Consular Officers (Oaths and Fees) Act, 1948.
4. Consideration of financial hardships for pre-deposit of duty and penalties.

Issue 1: Challenge against demand of duty, fine, and penalty by M/s. Em Pee Bee International

The appeal by M/s. Em Pee Bee International, represented by its proprietor, challenges the demand of duty exceeding Rs. 98 lakhs, a fine of Rs. 1 crore in lieu of confiscated goods, and penalties imposed under the Customs Act. The impugned demand is based on an enhancement of the value of imported goods, supported by computer printouts retrieved from the supplier through the Indian Consulate, New York. The main contention is the authenticity of these printouts under the Diplomatic And Consular Officers (Oaths and Fees) Act, 1948. The appellant argues that the printouts lack the necessary seal and signature of the authorized officer, rendering them inadmissible as evidence. However, the importer had initially accepted the printouts as authentic, only later retracting this statement in a writ petition. The Tribunal finds the initial admission by the importer as a valid acceptance of the printouts' authenticity, thereby upholding the enhancement of the goods' value based on the prices indicated in the printouts.

Issue 2: Challenge against penalty imposed on Shri N.C. Alexander

Shri N.C. Alexander has filed an appeal challenging the penalty imposed on him for abetment of the offense committed by the importer. The Tribunal, after considering the submissions, grants waiver and stay of recovery of the penalty imposed on Alexander, as waiver and stay were granted for the main offender. This decision aligns with the consistency observed in a previous case where pre-deposit was directed to be approximately 10% of the duty demanded.

Issue 3: Authentication of computer printouts as evidence under the Diplomatic And Consular Officers (Oaths and Fees) Act, 1948

The central argument revolves around the authentication of computer printouts as evidence under the 1948 Act. The appellant contests the validity of the printouts due to the absence of the seal and signature of the authorized officer. However, the Tribunal finds the initial acceptance of the printouts' authenticity by the importer as a crucial factor, negating the applicability of the 1948 Act in this case. The Tribunal emphasizes that the importer's retraction in a writ petition filed after the show cause notice cannot be considered a valid retraction, further solidifying the admissibility of the printouts as evidence.

Issue 4: Consideration of financial hardships for pre-deposit of duty and penalties

The appellant did not provide substantial evidence of financial hardships, aside from claiming business closure and inability to make any pre-deposit. However, these averments lacked supporting evidence. Despite the absence of concrete financial hardship proof, the Tribunal directed M/s. Em Pee Bee International to pre-deposit Rs. 10,00,000 within a specified timeframe, aligning with the consistency observed in similar cases where pre-deposit was set at approximately 10% of the duty demanded.

This detailed analysis of the judgment from the Appellate Tribunal CESTAT, CHENNAI provides a comprehensive understanding of the issues involved and the Tribunal's decisions on each matter.