2016 (2) TMI 389 - AT - Customs

Valuation - import of cranes - evasion of customs duty by (i) working out the assessable value of cranes at ₹ 20/- per kg. to ₹ 40/- per kg., (ii) suppressing freight charges paid to the shipping line, (iii) preparing invoices on CIF basis whereas the purchase is mostly on FOB basis, (iv) getting bills of lading prepared to show fraudulently that the freight is pre-paid. - Held that - whole case of undervaluation is essentially based on statements of certain people and the confessional statement of Shri Karim Jaria. However, the statements do not corroborate with each other. - cross-examination of persons whose evidence was relied upon was not allowed. The use of the word documentary evidence in para 24.7 of the order leaves us guessing as to what is the real documentary evidence on which undervaluation has been established by the Commissioner. Rather we find no evidence except a statement. Then there is no evidence to show that the Chartered Accountant s Certificates produced by the appellant indicating the value of machinery as well as the invoices presented at the time of import are manipulated. It is not on record that any query was made regarding the genuineness of these documents. The adjudicating authority has neither followed the principles of natural justice as indicated in the paragraphs above nor has he followed the correct legal principles to arrive at the transaction value. Therefore the case needs to be remanded for fresh adjudication. - Matter remanded back - Decided partly in favor of appellants.

Issues Involved:

1. Appropriation of Deposited Amount
2. Basis of Undervaluation Allegations
3. Denial of Cross-Examination
4. Method of Valuation
5. Involvement of Shri Madan Lalwani

Detailed Analysis:

1. Appropriation of Deposited Amount:

The Tribunal disagreed with the Commissioner's findings that the duty amount and interest deposited by the importer could be adjusted against the duty and interest recoverable for the period beyond five years from the date of the show cause notice (SCN). The Tribunal highlighted the lack of a clear finding on how the deposited amount was apportioned and emphasized that the deposit arose from persuasion, not voluntary compliance. The Tribunal referenced the case of Photokina, which relied on the Hon'ble High Court of Madras decision in Pilmen Agents (Private) Ltd., to support its stance that the amount deposited cannot be appropriated as duty and interest payable for the period beyond five years.

2. Basis of Undervaluation Allegations:

The Tribunal found that the case of undervaluation was primarily based on statements and the confessional statement of Shri Karim Jaria, which did not corroborate with each other. The statement of Shri Brijesh Gala did not specifically implicate the appellant, and the statements of Shri Akhil and Shri Jeetu Patel, who were named by Shri Brijesh Gala, were not referenced in the SCN or adjudication order. The Tribunal noted the significant gap that Shri Brijesh Gala, through whom the money was allegedly transferred abroad by "hawala," was not made a noticee in the SCN, undermining the credibility of the undervaluation charges.

3. Denial of Cross-Examination:

The Tribunal criticized the Commissioner for denying the cross-examination of crucial witnesses like Shri Brijesh Gala without recording specific reasons, which violated principles of natural justice. The Tribunal emphasized that cross-examination is essential, especially when the witness is a crucial link in the alleged illegal transfer of money abroad. The Commissioner's reliance on various judgments to deny cross-examination was deemed misplaced and misunderstood by the Tribunal.

4. Method of Valuation:

The Tribunal found the Commissioner's method of arriving at the value of the goods flawed. The Commissioner relied on the statement of Shri Karim Jaria, who allegedly recalled the value of each consignment without any supporting documents. The Tribunal noted that there was no evidence of enquiries made to determine the value at the time of manufacture and the assessable value after allowing depreciation. The Tribunal also pointed out that the Commissioner did not verify the practice of assessing the value of cranes on a per unit weight basis and did not provide details of any market price determination for the cranes. The Tribunal concluded that the adjudicating authority did not follow correct legal principles to arrive at the transaction value.

5. Involvement of Shri Madan Lalwani:

The Tribunal found no evidence to establish that Shri Madan Lalwani was involved in the undervaluation of cranes. The advice given by Shri Madan Lalwani to importers about the Customs' benchmark valuation practice did not make him an accomplice in undervaluation. The Tribunal noted that the Commissioner did not verify whether such a practice existed and how Customs authorities were allowing it. The statement of Shri Karim Jaria about paying clearing and agency charges to Shri Madan Lalwani did not implicate him in undervaluation without corroborative evidence. The Tribunal also noted that the Commissioner did not address the request for cross-examination and the denial of copies of examination reports in respect of cranes.

Conclusion:

The Tribunal remanded the case to the adjudicating authority for fresh adjudication, emphasizing the need to follow principles of natural justice and correct legal principles of valuation. The appeals were allowed by way of remand, with instructions for the authority to keep the Tribunal's observations and findings in mind.

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