9911796707
TMI Blog1994 (1) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... 864/177 2000 Pcs. US $ 1.50 92735.70 93663.06 136959/- US $ paid 2. 743/127 2000 Pcs. 1.50 94339.02 95283.02 139328/- 3. In both Unit Price of EPO Locks had been declared as U.S $ 1.50 per piece. According to the Department on the basis of secret information received, that consignments of EPO Locks vide Bill of Entry No. 2890 dated 10-4-1992 and 2520, dated 7-5-1992, imported by the appellant M/s. M.D. lnternational, Ahmedabad are underinvoiced, investigations were taken up by the officers of Marine and Preventive Wing, Bombay. Both Bills of Entry filed by M/s. Pratap, Clearing Agency were taken over from Shri Pratap Masrani Proprietor of M/s. Pratap Clearing Agency. The consignments were traced in Bombay Docks and subsequently seized. During the course of investigation statement of CHA, Shri Pratapbhai Masrani was recorded under Section 108 of the Customs Act. He stated that the import documents of both the above consignments were given to him by one Kishore Bhagat, another Customs House agent, who happens to be his relative also, on behalf of one `Virjibhai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve; that since this was a new item for Shri Pratap Masrani he agreed to look after the appraisal of these Bills of Entry. The appellant in his letter dated 26-6-1992 addressed to the Assistant Collector of Customs, Marine Preventive Wing, Bombay stated inter alia that they agree that unit price of EPO lock is US $ 5, that they agree to pay the differential duty on the undervalued amount; that they agree that there has been a contravention of the provisions of Customs Act, 1962. The appellant waived a show cause notice and personal hearing. However personal hearing was granted and the appellant appeared in person on 10-7-1992. He had admitted that there has been a lapse on their part and requested that a lenient view may be taken. He stated that he has no dispute that there has been misdeclaration of value in this case. When he was showed a fax message dated 30-12-1991 from M/s. Tomoe Sangyo Co. Ltd., Kobe, Japan which is in possession of department, showing the unit price of EPO Lock Model A-A543 as US $ 5.75 he stated that even though the quotation is showing the value of the EPO Lock as US $ 5.75 per piece, the actual value is US $ 5. Based upon the evidence and statement of pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the importer, evidence relied upon by the Revenue for enhancing the value of the goods still to be supplied as it was held in the case of HI-Iron Electronics v. Collector of Customs 1989 (42) E.L.T. 4 (Tribunal), the value of the goods cannot be enhanced based upon the statements of the importer unless contemporary evidence was brought on record since the burden lies on the Department to prove undervaluation and the similar goods were imported at higher price at the relevant time. The adjudication proceedings were initiated on the ground that the similar goods were imported in 1992 but without discussing the value of the similar goods, the value of the impugned goods was determined under Rule 8 of the Valuation Rules without any basis. He said that much was made out on the issue of compensatory payment in determining the value but the person who is said to have received such payments was not even made a party to the proceedings and no action has been initiated against co-accused but nevertheless his statement has been relied upon against the appellant without supplying the same. He said that in the impugned order it was observed that market enquiries revealed that retail price of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and the voluntary statement given by the party was not retracted. Hence observation made in the case HI-Tron Electronics (supra) referred to by the other side is not applicable and on the other hand the ratio of the decision in the case of Badjugar Kailash v. Collector of Customs (Preventive) 1991 (51) E.L.T. 508 (Tribunal), is applicable, wherein it was clearly held that mandatory Section 124 was fulfilled as the appellants waived written show cause notice and orally told about the contravention of laws he had made in importing the goods without declaring the same. He said that valuation in each case depends upon the facts and circumstances and accordingly the decision referred to by the party are not applicable and further it was held in the case of Sharp Business Machines Pvt. Ltd. v. Collector of Customs 1990 (49) E.L.T. 640 (SC) that there is nothing wrong if the value for the purpose of customs duty is determined on the basis of quotation. 6. In reply, referring to the decision in the case of Manindra Chandra Dey v. CEGAT - 1992 (58) E.L.T. 192 (Calcutta), Shri B. B. Gujral submitted that confessional statement, even if found admissible, should be treated as a light ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice, we find that the appellant had waived show cause notice. Once it is found that the statements given by the appellant is a voluntary statement and it is clear that the appellant had waived the issue of written show cause notice to him under Section 124, hence on the ground it cannot be said that there is infirmity in the order passed by the Collector of Customs (Preventive), Bombay. Under Section 124 even the written show cause notice is waived an oral show cause notice should be given to the appellant. Since the personal hearing was granted and the appellant had participated in the personal hearing and charges were known to him, it is clear that the mandatory provisions of Section 124 was fulfilled and this issue was precisely considered in the case of Badjugar Kailash (supra) as it was referred to by the Departmental Representative. Next question arises whether the evidence relied upon by the Department in enhancing the value was disclosed to the appellant before passing the order. There is no mandatory provision for supply of such evidence but natural law requires that should be disclosed and same should be known to the party before determining the value. In the ins ..... X X X X Extracts X X X X X X X X Extracts X X X X
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