2010 (9) TMI 620 - AT - Customs

Order - Confiscation and fine - Penalty - The respondent imported various machineries - There was a dispute about the age of the machinery as to whether they were more than 10 years old not and consequent violation of provisions of EXIM Policy and the goods were subjected to adjudication and permitted to be cleared on payment of redemption fine and penalty - The original authority enhanced the price and confirmed differential duty along with interest; he held that the goods were liable for confiscation and imposed fine , he also imposed penalty u/S 114A - Commissioner (Appeals) set aside the order of the original authority on the ground that the invoice relied upon by the department to enhance the price, was not a signed invoice - The discrepancy was sought to be explained as a clerical mistake - As the only evidence relied upon for enhancing the value is this document and since there is no other corroboration or admission by the respondent regarding undervaluation, the discrepancies cannot be ignored - Therefore, do not find any valid reason to interfere with the decision of the Commissioner (Appeals) - Appeal is, therefore, rejected.

Issues:
1. Dispute over the declared value of imported machineries.
2. Allegation of undervaluation by the department.
3. Reliability of documents procured through diplomatic channels.
4. Discrepancies in invoices and supporting documents.
5. Decision on appeal against the order of the original authority.

Analysis:

Issue 1: Dispute over the declared value of imported machineries
The respondent imported machineries from a German supplier, declaring a value of 10,000 Euros in the Bill of Entry. A dispute arose regarding the age of the machinery and compliance with EXIM Policy, leading to adjudication and clearance on payment of fines and penalties. The original authority accepted the declared value, but subsequent investigation alleged the actual value to be 19,000 Euros, resulting in differential duty, confiscation, fines, and penalties.

Issue 2: Allegation of undervaluation by the department
The department issued a Show Cause Notice based on overseas investigations, claiming the actual value of imported machineries to be 19,000 Euros, contrary to the declared value of 10,000 Euros. The department relied on an invoice procured through diplomatic channels, which indicated the higher value. The original authority enhanced the price, imposed duties, fines, and penalties under the Customs Act, which were challenged by the importer on appeal.

Issue 3: Reliability of documents procured through diplomatic channels
The department presented documents obtained through diplomatic channels, including an invoice authenticated by German Customs officials. The importer disputed the authenticity of the invoice, highlighting discrepancies in payment amounts and references. The tribunal considered the procedure of receiving foreign documents and concluded that documents duly countersigned by assisting foreign officials are reliable, supporting the department's claim of undervaluation.

Issue 4: Discrepancies in invoices and supporting documents
The tribunal noted significant discrepancies in the invoices and reports provided by the department and the German authorities. Discrepancies in invoice numbers and references raised doubts about the accuracy and consistency of the evidence presented. The importer argued against the reliance on unsigned invoices and pointed out inconsistencies in payment details, emphasizing the lack of investigation into actual payments made.

Issue 5: Decision on appeal against the order of the original authority
After considering submissions from both sides and examining the records, the tribunal upheld the decision of the Commissioner (Appeals) to set aside the original authority's order. The tribunal found discrepancies in the documents relied upon by the department, lack of corroboration or admission of undervaluation by the importer, and unresolved inconsistencies in the evidence. Consequently, the appeal by the department was rejected, and the cross-objection supporting the Commissioner's decision was disposed of.

This detailed analysis covers the key issues involved in the legal judgment, addressing the dispute over declared values, allegations of undervaluation, reliability of documents, discrepancies in evidence, and the final decision on the appeal.

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