2007 (11) TMI 262 - AT - Customs

Discrepancy in respect of the quantities found in the containers vis-a-vis those declared - discrepancies in quantity admittedly relate to an excess DEPB hence DEPB entitlement of the exporters would have therefore to be reduced - hold that FOB value as declared on the invoices and PMV as declared on the DEPB declarations on record are correct - allegations of deliberate mis-declaration of quantity & value are not proved confiscation & penalty not justified revenue s appeal rejected

Issues Involved:
1. Overvaluation of export goods.
2. Confiscation of goods and imposition of penalties.
3. Procedural irregularities and amendments in the Shipping Bills.
4. Credibility of statements and evidence.
5. Allegations of coercion and misconduct by the Department of Revenue Intelligence (DRI).
6. Compliance with judicial orders and timelines.

Detailed Analysis:

1. Overvaluation of Export Goods:
The judgment addresses allegations of overvaluation in the exports attempted by four companies. The declared FOB values were rejected and re-determined, leading to the confiscation of goods and imposition of penalties. The appellants argued that discrepancies in the Check List were due to the EDI system's peculiarity, which did not accept separate units for rate and quantity. The Commissioner found that there were two sets of invoices, one showing the rate on a "per piece" basis and another on a "per dozen" basis, but this was not supported by primary evidence.

2. Confiscation of Goods and Imposition of Penalties:
The Commissioner confiscated the goods and imposed penalties on various individuals and entities under Section 114(i) of the Customs Act, 1962. However, the judgment found that the allegations of overvaluation were not substantiated by credible evidence. The declared values were found to be correct, and the discrepancies in quantity were minimal and not deliberate. Consequently, the confiscation of goods and penalties were set aside.

3. Procedural Irregularities and Amendments in the Shipping Bills:
The judgment discussed the procedural route followed by the Shipping Bills under the EDI system. The appellants argued that the discrepancies in the Check List were bona fide errors due to the EDI system's limitations. The Commissioner accepted that the EDI system did not recognize separate units for rate and quantity, leading to the discrepancies. The amendments sought were only for changing the unit of rate from "per piece" to "per dozen," which was allowed by the Assistant Commissioner.

4. Credibility of Statements and Evidence:
The judgment critically examined the credibility of the statements recorded by the DRI. It found that the statements of key individuals, including Mr. Unnikrishnan and Mr. Mufazzal, were extracted under duress and were unworthy of credence. The reliance on these statements by the Commissioner was held to be misplaced. The judgment emphasized the need for primary evidence, such as the original Annexure 'A' and invoices, which were not produced by the Revenue.

5. Allegations of Coercion and Misconduct by the DRI:
The judgment highlighted several instances of coercion and misconduct by the DRI officers, including physical assault and misstatements in judicial proceedings. The learned ACMM's orders and medical reports confirmed the use of third-degree methods to extract statements. The judgment strongly condemned the DRI's conduct and rejected the statements obtained through such means.

6. Compliance with Judicial Orders and Timelines:
The judgment noted that the Commissioner's order was passed beyond the time stipulated by the Hon'ble High Court and endorsed by the Hon'ble Supreme Court. The High Court's order included the adjudicatory process, not just the investigation. As the order was passed after the expiry of the stipulated time, it was held to be barred by time and set aside on this ground.

Conclusion:
The judgment set aside the confiscation of goods and penalties imposed on the appellants, finding no credible evidence of overvaluation or deliberate mis-declaration. The appeals of the Revenue were dismissed, and the appeals of the other parties were allowed. The judgment emphasized the importance of adhering to procedural fairness and the credibility of evidence in adjudicating such matters.

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