9911796707
TMI Blog2000 (1) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... hat invoice, Bill of Entry was filed on 8-11-1984. In the said Bill of Entry also price of machine was shown as DM 1,38,000.00. The description of the machine in the invoice and Bill of Entry was given as used and overhauled. Duty on that amount, namely, Rs. 6,57,824.50 was paid on 16-11-1984. Further investigation conducted by the Department revealed that the machine was highly under-invoiced. As per the Department, the actual value of the machine was DM 3 lakhs, which was reduced to DM 2,80,000.00 on payment of an advance of DM 1,27,450.00. On the basis of this valuation arrived at by the Department, show cause notice dated 5-10-1987 was issued calling upon the importer, namely, Indian Express Newspapers (Bombay) Pvt. Ltd., its Chairman a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that was imported was under-valued under Section 111(m) of the Act, whether respondent is liable to penalty under Section 112 of the Act and whether differential duty is leviable from the respondent. 3. It is common case of the Department and the respondent that machine described as Chromagraph DC 300 BER MCS bearing importer's code No. B 800253 imported to India by the respondent from Dietrich Kuhne of Hamburg. It is also the common case of the parties that the said machine was an old and reconditioned one. According to the importer, its value was DM 1,38,000.00 only. The Department's case is that the value of that machine was DM 3 lakhs, that on payment of advance of 50% there in Germany, the price was reduced to DM 2,80,000.00 and tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entative by name R.P. Mittal. Documents recovered by the officers of the Department in the course of investigation contained the communication which passed between Dietrich Kuhne and R.P. Mittal. From these documents Department want to establish their case that the transaction value of the machine that was imported by Indian Express was DM 2,80,000.00. 5. Annexure 25 to the show cause notice is a letter typed on a letterhead of Dietrich Kuhne, which is dated 15-3-1984. It stated : I offered you one DC 300 BER - with complete accessories price CIF Delhi DM 3,00,000. If you pay 50% cash, I will try to get the machine for DM 280,000 The second paragraph of this letter is not relevant for the purpose of this case. Below the second parag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven her in cash DM 500 for shopping. So, Ms. Renu owes us total DM 25,050. The details given in this paragraph throw valuable light on the actual transaction price of the machine imported by Indian Express. LC for DM 1,38,000 was directed to be opened by the Indian Express after taking credit of the advance paid on their behalf by Ms. Renu Sharma. It also brings out the fact that to make up the total price of the machine of DM 2,80,000, DM 25,050 was to be paid to Dietrich Kuhne. 6. As discernible from the communication dated 26th July 1984 sent by Dietrich Kuhne, which was dealt with in the earlier paragraph, Shri Kuhne was pressing for getting DM 25,000. For getting that amount, he sent communication to Shri Goenka as well. The tele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the fact that the machine which was negotiated by Ms. Renu Sharma and in respect of which she paid the advance was finally purchased by Indian Express. So, the price of the machine was DM 2,80,000 and not DM l,38,000, as contended by the importer. 8. Ms. Renu Sharma, after paying the advance to Dietrich Kuhne, took DM 25,000 from him for her own use. The fact mat Ms. Renu Sharma took DM 25,000 from Kuhne has been admitted by Shri Goenka in his statement. What he stated was: As already stated by me, DM 25,000 was taken by Renu Sharma from M/s. Dietrich Kuhne, using my name. The fact regarding Ms. Renu Sharma, using my name for taking DM 25,000 from M/s. Dietrich Kuhne was told to me by Mr. Dietrich Kuhne himself. As soon as I came to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India - 1992 (59) E.L.T. 201 and K.I. Pavunny v. Asstt. Collector (HQ) Central Excise Collectorate Cochin - 1997 (90) E.L.T. 241. In this particular case, when the documentary evidence referred to above clinches the issue regarding the transaction value of the machine purchased by Indian Express, we do not think it necessary to go into the statements of witnesses recorded by the investigating officers. Those statements, which were subsequently retracted, do certainly go to have a general corroboration to the facts brought by the documents referred to above. Even so, we steer clear from those statements because, according to us, the documentary evidence, which was contemporaneous to the finalisation of the transaction clearly establishes th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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