9911796707
TMI Blog2000 (10) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... orenexdene glucomine imported by the appellant was undervalued. The appeals are against this order. The other three appeals are by the Commissioner on the ground that the Commissioner s order since it did not impose the penalty under section 112 of the Act, proposed in the notice on the importer; on its Director and one employee. 2. We have heard Mr. Uday Joshi, the advocate for the importer and the two individuals, Kirit Shah, Prakash Naik, the Director and Manager of the importer, and A. Chopra, departmental representative for the Commissioner. 3. M/s. Kayvee Aeropharma had imported the consignment in question consisting of chlorhexidine gluconate 20% from M/s. Xttrium Laboratories, Chicago, Illinois, and USA. The value declared in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the invoice it has stated by the supplier of the goods as per your requirement . The Commissioner, however, does not accept the explanation tendered by Naik for the difference between the purchase price and the sale price of the goods that they required rectification before being sold, for the reason that no evidence has been produced in support, either during the investigation, or before him. He finds that an invoice for sale of three drums out of seven drums which were imported described the commodity in the same terms as the invoice for their importation, had the same batch number as the import invoice and did not describe the goods to be rectified. The goods were also sold in the same drums in which they were imported. He has, on this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Naik s efforts that these invoices were obtained. Kirit Parekh says as much in his fax to the DRI. However, that by itself does not show that the fax and the invoices were sent under compulsion. It is also to be noted that the invoices were issued not by Parekh, but by Xttrium Laboratories. On a reading of these invoices it is not possible to conclude that they were created only after Naik spoke to Parekh and Parekh in turn spoke to the supplier. That fact that the two invoices (one for $ 1/- per kilogram and another for $ 7/- per kilogram) for each consignment were identically worded, except for the rate and the words and "As per your request contained in the invoices for $ 7/- per kilogram. Indeed, even if we assume that it was the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not clear why Naik chose to send this to a political authority who was entirely unconnected with the matters. The Department of Power has nothing to do with revenue collection or importation of goods. If he had a complaint against the DRI officers one would have expected him to write to their superior authority or to their Minister in charge of that ministry; to whom in any case the complaint was finally sent. It is also not clear when this complaint was sent. There is no date on the copy produced in the appeal. Further, it does not specify the kind of pressure that was applied, or name the officers who applied it. 8. It is to be noted that the Commissioner, despite not accepting the voluntary nature of these documents still finds that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mporter, realising that it was guilty of undervaluation, chose on its own account to redress the wrong and paid duty. It is only after the investigation officers came into the picture the duty was paid. In these circumstances there was a case for liability to confiscation of the goods under clause (m) of section 111 of the Act. The importer would also be liable to penalty. Liability of each of the individuals to penalty would also have to be examined having regard to their involvement in the proceedings. We are of the view that it is more appropriate for the Commissioner to examine this aspect and decide it in accordance with law after taking into consideration such factors as margin of profit, for which he may hear the appellant also. 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
