9911796707
TMI Blog2002 (8) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... umulatively amounted to 94 consignments of the declared value of Rs. 6,15,05,201/- imported during 1997-98, 58 consignments totally valued at Rs. 3,36,28,286.95 imported during 1-3-1998 to 28-2-1999 and 20 consignments totally valued at Rs. 41,55,578.67 imported during 1-3-1999 to 31-8-1999. In these statements, the applicant also gave details of the relevant invoice/B.E. number, and date, descriptions of the goods, port of import, amounts of duty paid, amount of CVD of which Modvat is claimed and the amount of duty foregone. The total declared assessable value of the goods mentioned in the application is Rs. 10,88,76,755.62. The applicant stated that no SCN has been issued to them and that they are filing the application as a period of 180 days is already over from date of search and seizure, in terms of the provisions of sub-section (2) of Section 127B of the Customs Act, 1962 (hereinafter referred to as the Act). The applicant admitted additional amount of duty as payable by them at Rs. 48,52,382.01 and stated that they have already paid an amount of Rs. 1 Crore and the amount admitted by them may be adjusted from this deposit and they may be given the benefit of the Modvat cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of 36 consignments alone. It is also reported that of the total 172 consignments, only 15 pertain to imports in Mumbai and the remaining 157 shipments have been cleared from Delhi. The DRI also affirmed that their investigation is still continuing and entertaining the application at this stage would prejudice the interest of Revenue. The DRI also emphasised that the benefit of Modvat credit in respect of the CV Duty is not available to the applicant in terms of the proviso to Rule 57E(3) of the Central Excise Rules, 1944 (Hereinafter referred to as the Rules). The DRI requested to reject the application and permit them to complete the investigation and issue the SCN. 4. The application was heard for admission by the additional Bench, Mumbai on 26-4-2001. The Additional Bench in their Interim Order No. 9/2001-Cus. held that in the interest of Justice, it would not be desirable to split the case where a composite application has been made and directed the matter to be placed before the Chairman of the Commission to assign the application for disposal in respect of the imports both at Mumbai and New Delhi to an appropriate Bench in exercise of the powers, conferred under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecific use. However, since the applicant is a law abiding citizen and is not interested in protracted litigation, the applicant is willing to get the value of the imported goods enhanced and pay the differential duty thereon as per worksheet enclosed. (1) Additional amount of duty payable on the goods covered in the Bill of Entry and the manner in which such duty has been derived : Total Bills of Entry No. 186 (2) Duty liability accepted out of the total duty demanded in the show cause notice, if any, issued and the manner in which such duty liability has been derived : Rs. 48,52,382.01 5.1 In the worksheet given in the sealed cover, the applicant has shown the total declared assessable value of all imports at Rs. 10,88,76,755.62, the Basic Customs Duty paid at Rs. 3,10,35,187.03 and the CV Duty at Rs. 1,28,84,139.11. It is accepted that in respect of 28 consignments there is a discrepancy in the declared assessable value, which should be Rs. 2,14,17,542.12 and on this basis additional duty of Rs. 48,52,382.01 is disclosed and accepted as payable. 6. The applicant filed a Miscellaneous Application on 18-12-2001 objecting to the liberty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the duty demanded amounts to Rs. 2,71,07,014/-. It is also stated that the derived values were in terms of Rule 6 of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988. DRI relied on the judgment in the case of M/s. Orson Electronics Private Ltd. v. Collector reported in 1996 (82) E.L.T. 499 (Tribunal) and order of the Additional Bench of the Commission in the case of M/s. Manhar Audiotronics (P) Ltd. Reported in 2001 (133) E.L.T. 244 (Sett. - Com.). Copies of the evidences received from Hongkong Customs were also enclosed alongwith Annexure-A and Annexure-B showing the working out of the duty demanded in the respective show cause notices. The DRI also furnished a comparison chart of evidences received from Hongkong Customs and calculation shown by the applicant in respect of the 36 consignments in question. A copy of this paper book was served by the DRI on the applicant. 8.1 In reply, the applicant filed an affidavit of Shri H.S. Chawla dated 20-3-2002, inter alia, denying all the allegations and affirming that the documents relied upon are neither authenticated by the exporter or the Hongkong Customs nor the Consulate General of India, Hongkong and, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proximity and no explanation is available for such difference. It is also submitted that photocopies of documents said to be of Foreign Supplier is not acceptable evidence. The ld. Advocate placed reliance on the Judgment of Supreme Court in the case of Collector of Customs, Mumbai v. East Punjab Traders reported in 1997 (89) E.L.T. 11 (S.C.) particularly para 5 thereof. The ld. Advocate also relied upon Tribunal s Judgment as reported in - (i) 1996 (86) E.L.T. 309 (ii) 1988 (34) E.L.T. 98, Para 37 thereof (iii) 2001 (130) E.L.T. 638 and submitted that the DRI had suppressed the letter dated 14-6-1999 of the Hong Kong Customs. On a query raised by the Bench, the Advocate replied that their disclosure is confined to 28 consignments as informed to them verbally by their supplier that discrepancies in value were only in respect of these consignments. The ld. Advocate requested for benefit of Modvat credit of the CV Duty and prayed for all immunities under Section 127H of the Act. 10. After hearing both the parties, the bench permitted, them to file written submissions if any and directed DRI to submit the original copies of all the documents received from Hongkong Customs including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us whether they had received any communication in support of their claim that the supplier of the goods had declared different values before Hongkong Customs only in respect of 28 consignments where as the evidence produced by the DRI was in respect of 36 consignments. The learned Advocate replied that on a verbal information from the supplier indicating that there were discrepancies in the invoices of 28 consignments sent to them, they have come forward to pay the differential duty in respect of these consignments only . This is not at all satisfactory, particularly, when the detailed evidences gathered by the DRI have been made known not only during the investigation but also subsequently by way of 3 show cause notices referred to above and the detailed paper book of the DRI dated 19-2-2002. The applicant has merely, questioned the evidences collected by DRI on the ground that the documents are neither signed nor authenticated and have no evidentiary value. We are of the view that this approach is totally inconsistent with the requirement of the law on settlement, particularly section 127B of the Act which requires a full and true disclosure of duty liability and the manner in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pancies raising doubt regarding veracity of the document. It is after noticing these facts that the Hon ble Supreme Court observed : In these circumstances, the presumption to be raised under Section 139(ii) of the Customs Act could not be raised because the document did not bear any signature, did not come from proper custody and it is difficult to understand why the Indian customs did not interact with the Japan Customs and obtain authentic copies of the document from the latter. Merely because the Department offered cross-examination of the steamer agent from whom the export declaration had been obtained and the respondents chose not to avail of that opportunity is no ground for holding that requirements of Section 139 are satisfied for the purpose of raising the presumption. In order to raise the presumption under the said provision, the basic facts had to be laid. Even though they bear a serial number and stamp of Japan Customs, the fact remains that they are copies of copies and indisputably bear no signature of the exporter, the forwarding agent, the stevedore or the Customs Officer, no signature at all of any of them. The discrepancy in regard to copies bearing the seal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... torate of Revenue Intelligence through appropriate governmental channels. The Japanese Government caused investigations to be carried out by the International Investigation Section of the Metropolitan Police. The documents in question, presented to the Japanese Customs at the time of export of the goods in dispute, were seized from the Special Examiner, Yokohama Customs Supervisory Department. These documents had further been forwarded with the investigation of Japanese authorities which has all been narrated in the show cause notice. There is thus no force in the arguments doubting the authenticity of the documents. Further, Sh. M.R. Chhabria one of the appellants herein said in his statement dated 8-3-1990 on perusal of these documents, I state that the discrepancies are obvious and both the invoices appear genuine. I identify and confirm that the signature on invoice No. D-86-2482/2485, dated 14-4-1986 are of Sh. V.B. Rupani, Managing Director of Supra (Japan) Ltd., Japan. Shri Chhabria is admittedly the Chairman of the Importing Company and a 51% share holder along with Rupani of the supplier firm Supra in Japan. The statement of such a person then would lend sufficient credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding that the ascertained value of 3 Bills of Entry can be adopted for remaining 7 Bills of Entry also. In this case out of 10 Bills of Entry under-valued, only in respect of 3 Bills of Entry, the Hongkong Customs authorities had given evidence of correct export value to the investigation agency in India. We are in agreement with this decision and hold that the same principle applies in the case of the present applicant. In view of our finding, the correct duty liability of the applicant is Rs. 3,91,60,885/- as demanded in the show cause notices in question. 15. Since we have concluded that the applicant did not disclose their full and true duty liability in their application nor did they improve or modify their disclosure during the hearing of the case when the entire evidence was made known to them the various immunities under Section 127H of the Act are not available to them. We, however, note that they have co-operated in the proceedings before this Commission and to that extent they deserve some leniency in matters of levy of penalty and interest. We, therefore, allow only partial waiver of the penalty and interest leviable in this case. We have also noted that this is a cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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