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TMI Blog2010 (3) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... ember (T)]. - On the basis of intelligence that M/s. Jogani Tyres (India), Mumbai were undervaluing the tyres imported by them during the period 1995-96 and 1996-97 investigation was taken up. After investigation issue of show cause notice and adjudication process, the impugned order has been passed wherein the undervaluation has been upheld and differential duty of Rs. 18,46,892/- has been demanded under Section 28(1) of Customs Act, 1962 with interest as applicable. Further, a penalty of Rs. 2,52,073/- has been imposed under Section 114A of Customs Act, 1962 and a penalty of Rs. 10,00,000/- has been imposed on Shri Lalit B. Jogani and a penalty of Rs. 5,00,000/- has been imposed on Shri Shailesh B. Jogani. 2. Heard both the sides. 3. Before we proceed further, the case of the department against the appellant is explained in brief. M/s. Jogani Tyres (India) had imported and cleared 1,426 Michelin brand tyres as detailed below : S. No. Tyre Size No. of Pcs. (Truck Tyres) Bill of Entry No. date Invoice No. Value (US$) Per piece 1. 7.50 R15 x 135G Michelin Brand 150 2910 dated 8-5-95 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f of the appellants made following submissions :- (i) Firstly he submitted that the department in the show cause notice had stated that the invoice was of the original manufacturer namely M/s. Michelin Asia, Hong Kong whereas in reality Michelin Singapore was not the manufacturer but the tyres were manufactured in Germany. Therefore, the foundation itself is wrong as regards the case and on this ground itself, the appeal has to be allowed. He submitted that even the Commissioner has also gone on the same assumption and in this connection he drew our attention to para 47 of the Commissioner's order. (ii) He also submitted that the department has quoted Rule 10 of the Valuation Rules which is not at all relevant. By quoting a wrong rule of valuation rules, the appellants have been deprived of the opportunity of properly defending their case and therefore on this ground also appeal has to be rejected. (iii) Further, he also submitted that the value had been enhanced after assessing the goods provisionally and therefore the department cannot enhance the value second time for the same consignment. (iv) After twelve days of recording of statements, Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... N.B. Sanjana v. Elphinstone Spg. Wvg Mills Co. Ltd. - 1978 (2) E.L.T. J 399(S.C.) (c) CCE v. Pradyumna Steel (P) Ltd. - 1996 (82) E.L.T. 441 (S.C.) (d) Borivli Hosiery Mills v. CCE - 1991 (56) E.L.T. 76 (Tri.) (e) J.K. Steel v. U.O.I. - 1978 (2) E.L.T. J355 (S.C.) (iv) He also submits that merely because the manner as well as the show cause notice treat Michelin Hong Kong as the manufacturer which is obviously an error committed both in the show cause notice and the Order in Original, it would not affect the proceedings. The basis of proceedings is that the original manufacturer's invoice has been received from German Customs and these invoices show a much higher price and on that basis undervaluation is sought to be established. The decisions cited by the Commissioner as regards quoting of a wrong rule or a section would apply to this aspect also. It cannot be said that appellants are ignorant of the facts since it was they who had manipulated the invoice. Whether the invoice mentioned is that of Michelin Hong Kong or Germany, the only way the appellants could have rebutted the evidence to show that the goods were valued correctly was to g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oice. Further, we find that the decisions cited by the Commissioner in support of his contention that merely because a wrong rule has been quoted, the show cause notice does not get vitiated is correct. Further, we also find that the Commissioner has proceeded exactly as per the provisions of valuation rules to re-determine the value. As regards the fact that invoice has not been signed, we do not find that this is a proper rebuttal of the evidence produced by the department. In this connection we find that the decisions cited by the learned advocate are not applicable to the facts in this case. In the case of Mebajeona Stud Farm v. CC, Mumbai reported in 2008 (224) E.L.T. 330 (Tri.-Mumbai), the Tribunal held that unsigned invoice relied upon by Revenue which is approximately eight months after import of mares cannot be relied. It is not the case of the appellants in this case that the invoice was more than eight months after the import. In the case of Galaxy Funworld Pvt. Ltd. v. CC, Mumbai reported in 2007 (220) E.L.T. 332 (Tri. - Mumbai), the proposal for enhancement of value on the basis of unsigned invoice of manufacturer was rejected in view of the fact that there was no clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, the suppression is rightly invokable. The fact that the Assistant Commissioner had enhanced the value in respect of one bill of entry dated 5-9-96 does not mean that department cannot reopen the assessment when the original invoice is traced or gathered or investigation shows that the goods were undervalued. 12. Further, enhancement of value in respect of the consignment is also in order in view of the clear admission by Shri Lalit B. Jogani. 13. As regards the contention that penalty under Section 114A and interest under Section 28AB cannot be made applicable since all the bills of entries were filed before 28-9-96, we find that the Commissioner has correctly applied the provisions only in respect of one bill of entry. According to Section 28, the expression relevant date means :- (a) in a case where duty is not levied, or interest is not charged, the date on which the proper officer makes an order for the clearance of the goods; (b) in a case where duty is provisionally assessed under Section 18, the date of adjustment of duty after the final assessment thereof; (c) in a case where duty or interest has been erroneously refunded, the date of refu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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