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TMI Blog2009 (6) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... d was negotiated and imports were made. The invoices which were raised by the foreign supplier were for the amount, which was negotiated and agreed upon between the two parties. The prices agreed accordingly were mutually negotiated for the purpose of market penetration, which resulted in offering higher discounts to the normally offered in the pricelist/quotation of the foreign supplier. On an investigation which was done by the DRI, 53 consignments imported by the appellant were investigated. The said 53 consignments were already allowed and cleared, as per the value declared in the relevant Bills of Entry. After an investigation by the lower authorities and recording of the statements, the lower authorities came to the conclusion that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 72,91,775/- under Section 114A of the Customs Act, 1962. A further penalty of Rs. 10,00,000/- was also imposed on the partner i.e., Shri Anthony Thomas under Section 112 of the Customs Act, 1962. Aggrieved by such an order, the appellants are before us in these appeals. 3. Learned Counsel Shri Parameshwaran along with advocate Shri Balagopal appeared on behalf of the appellants. The learned counsel took us through the Order-in-Original and the entire show cause notice. Ld. Counsel mainly argued that the entire order is based upon the statement of Shri Antony. He draws our attention to that portion of the statement which was given by Mr. Anthony wherein it indicated that it was mutually agreed between the companies to declare a lower ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in any case, the statement and other evidences relied upon could at best be considered as tax planning and certainly not as tax evasion, which would get further established by the tact that every year the price of the items has been increasing and during the year 2006, it had reached a stage of offering normal discounts in terms of the said pricelist/quotation. It was his submission that the whole basis adopted for alleging undervaluation seems to be totally misconceived. It is also his submission that department has not produced any evidence of contemporaneous imports. On the contrary, it is his submission that appellant had placed on record contemporaneous import detail before the Adjudicating Authority, which he has not even consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also an investigation was launched by DRI and they have settled the matter before the Settlement Commission. As regards the other evidences, it is his submission that the evidences were very clear in this case. He would submit that the managing partner has clearly given a statement saying that for the purpose of customs duty, they have agreed for the 50% of the negotiated price to be mentioned on the invoices. 5. We have considered the submissions made in detail by both sides and perused the records. The entire case is regarding the undervaluation of 53 consignments of opal glassware imported by the appellant. The details of the imports are given in the show cause notice as Annexure-A. On the perusal of the Order-in-Original, we find t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action value will be increased in subsequent consignments. In this case, the finding of the Adjudicating Authority is that re-determination can be done under Rule 5 to 8, occurs only in cases when the actual transaction value cannot be ascertained correctly on the basis of the documents submitted. It is also noticed that in this case, the submissions made by the appellant before the learned Adjudicating Authority, as regards the amount of remittances made by them is exactly the same which is mentioned in the invoices, which were annexed along with the 53 bills of entries. This part of the evidence has not been appreciated by the learned Adjudicating Authority nor has he given any findings on this point. Further, we also find that the Adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence of contemporaneous import value has to be produced by the revenue to bring home charge of undervaluation. In this case, the appellants having produced the evidence of contemporaneous imports, it should have been appreciated property by the Adjudicating Authority instead of dismissing it summarily. 5.3 In sum, we find that appreciation of evidence needs to be done by the Adjudicating Authority. In view of this, we set aside the impugned order and remand the matter back to the Adjudicating Authority to reconsider the issue afresh, after appreciating the evidences which may be led by the appellant before him. It is needless to mention that a conclusion be reached only after granting an opportunity of personal hearing. Appeals are allow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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