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TMI Blog2007 (9) TMI 500X X X X Extracts X X X X X X X X Extracts X X X X ..... ant had not disclosed their agreement with the manufacturers to the Department even after three years and that the importer had suppressed material facts from the Deptt. which resulted in a loss to the exchequer. Accordingly, the declared value for the goods imported under the subject Bill of Entry was rejected by the Commissioner confirming the demand of Rs. 1,68,73,731/-. In this order, a sum of Rs. 66.5 lakhs has been voluntarily deposited by the importer during the investigation and the same stands appropriated and adjusted against the demand. Apart from charging interest a penalty of Rs. 1,68,73,731/- was imposed on the importer in addition to a penalty of Rs.10 lakhs each on the two Directors. 2. A perusal of the record reveals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged that the appellant-company grossly under invoiced the goods contrary to the contracted /transaction prices agreed upon with M/s. GAIL arrived at after tripartite negotiation between the appellant-company and EMSG, the American representative of the manufacturer PECC. 3. Ld. Counsel for the appellant-company and the two Directors submits that the revenue is relying on two pieces of evidence (1) "list price" and (2) the price at which the manufacturer had sold the goods to the US suppliers. He contends that for the limited purpose of stay, the appellants are prepared to agree with the second category of pricing as alleged which is according to him, roughly 95% higher than the invoice value. 4. Ld. Departmental Representative c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the strength of the invoices raised by Sunag Corpn. confirm undervaluation and misdeclaration of transaction value to the customs to the extent of 20% to 25% as compared with its purchase value from the manufacturer and therefore, the invoices raised by M/s. Sunag Corpn. for the subject imports cannot be relied upon. 5. Ld. Counsel for the appellant submits that the appellant-company is in financial difficulties. To demonstrate his contention, a copy of balance sheet of Kemtech International Pvt. Ltd. as at 31-3-07 along with profit and loss account for the year ending 31-3-07 were produced. From the entry relating to current assets, it was contended that as per the balance sheet net current assets of the appellant company comes to R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me have deep links with the manufacturers in the United States who themselves have called them as their "authorized representatives". As per the version of the manufacturers themselves, the quotations could be made directly to GAIL based on the manufacturer's list prices, "which was standard for all their customers worldwide" as appearing in their letter dated 30-4-01 addressed to the GAIL authorities. This letter itself indicates that the so called supplier and the so called purchaser in this case are inextricably connected to each other, like nail and flesh. At this juncture, the non-existence of sale between the supplier in the U.S.A. and the appellant-company as contended before us by the ld. Counsel for the appellant requires an in-dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e "dramaties personae" in this episode, namely the two Directors running the business have not come forward with any plea of financial hardship, nor have they demonstrated their financial difficulties that prevent them from coughing up their dues. We, therefore, direct them to pre-deposit Rs. 3 lakhs each within eight weeks from today, failing which the appeal(s) of the defaulting appellant(s) will be dismissed. We, therefore, direct them now to deposit a sum of Rs. 40 lakhs. On depositing the said amount of Rs. 40 lakhs by the appellant-company and three lakhs each by the Directors within eight weeks from today, the remaining amount of duty and penalty demanded under the impugned order shall stand automatically waived during the pendency o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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