2008 (12) TMI 130 - AT - Customs

Undervaluation - Austrian High Commission supplier s letter supplier s faxes all stating that the invoice issued by the supplier SIBU was indicating only 25% of the total value of the goods - defence that payments of the balance amount has not been made is not sufficient as long as liability for the payment of balance amount has not been disputed by them - Though the appellants have been contending that similar imports have been made by others he failed to give the price at which such imports if any have been made and the quality thereof demand and penalty upheld however duty cannot be demand on basis of presumptions and conjectures appeal partly allowed

Summary

Issues Involved:

1. Alleged undervaluation of imported polystyrene sheets.
2. Evidence supporting undervaluation.
3. Contemporaneous imports and their relevance.
4. Seizure and confiscation of goods.
5. Imposition of penalties.
6. Validity of redemption fine.

Issue-wise Detailed Analysis:

1. Alleged undervaluation of imported polystyrene sheets:

The case revolves around M/s. Plastotex (Bombay) P. Ltd. importing polystyrene sheets from M/s. SIBU and allegedly misdeclaring their value. Investigations revealed that Plastotex and SIBU had an understanding where invoices declared only 25% of the actual value, with the remaining 75% paid separately via Telegraphic Transfer (TT). The Indian High Commission and Austrian customs confirmed this undervaluation. The Commissioner concluded that 18 consignments were undervalued, demanding duty for all consignments.

2. Evidence supporting undervaluation:

Evidence included statements from Plastotex's director, invoices verified by the Indian High Commission, and faxes from SIBU indicating the split invoicing scheme. The director admitted receiving faxes about the payment split, and searches recovered relevant documents. The Tribunal found substantial evidence for the undervaluation of 8 consignments, including matching invoices and faxes detailing the payment structure.

3. Contemporaneous imports and their relevance:

The appellants argued that the value should be based on contemporaneous imports, but the Commissioner found no comparable imports. The Tribunal noted that the appellants failed to provide evidence of similar imports at declared prices. The Commissioner's findings that other imports were of different materials (P.P. sheets) and not comparable to polystyrene sheets were upheld.

4. Seizure and confiscation of goods:

During searches, 233 polystyrene sheets and 4350 meters of rubber plastics were seized. The Commissioner confiscated these goods with an option to redeem them on paying a fine. The Tribunal agreed with the confiscation of polystyrene sheets but set aside the confiscation of rubber plastics, as there were no charges or findings against them in the show cause notice or order.

5. Imposition of penalties:

The Commissioner imposed penalties under section 114A for duty evasion. The Tribunal upheld the penalty on Plastotex's director, finding sufficient evidence of his involvement in the misdeclaration. However, the penalty amount was reduced proportionally to the reduced duty demand.

6. Validity of redemption fine:

The Tribunal reduced the redemption fine proportionally, considering the set-aside confiscation of rubber plastics. The fine was reduced from Rs. 5 lakhs to Rs. 3.25 lakhs, aligning with the upheld confiscation of polystyrene sheets only.

Conclusion:

The Tribunal upheld the findings of undervaluation for 8 consignments, confirming the demand for differential duty and associated penalties. However, the demand and penalties for the additional 10 consignments were set aside due to a lack of evidence. The confiscation of rubber plastics was also set aside, reducing the redemption fine accordingly. The appeals were partly allowed, reflecting these adjustments.