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TMI Blog2010 (12) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... ics. Incriminating documents and a computer containing incriminating data were seized; computer from the premises of the clearing agent.Statements were recorded from Shri Velu Chandrasekar and Directors of M/s. MAA Logistics, who handled cleared the goods on behalf of clearing agent M/s. Ujwal International. After due process of law, Addl. Commissioner of Customs, Bangalore decided the following allegations as recorded in his order: i. NIKKALITE brand Retro Reflective Sheet imported vide Bills of Entry No.436656 dt. 3/4/2003, No.320364 dt. 20/5/2002 and Airway Bill No.05840364973 by declaring them as self-adhesive paper classifying them under Tariff heading 4823.12 are re-classifiable under Tariff heading 3920.99. ii. Window films, NIKKALITE brand Retro Reflective Sheet, tools and hairdryers imported by the noticee are undervalued/ mis-declared with intention to evade payment of customs duty and whether the same are liable for confiscation under the provisions of Section 111 of Customs Act, 1962. iii. Differential duty is demandable on the aforesaid goods along with interest. iv. The noticee company M/s. Velpa Technologies and the other four co-noticees are liable for pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gapore Dollor (SGD) 192 per roll (24 x 50 yards). Accordingly, he re-determined the value and confirmed the demand on the quantity imported and duty short paid. 2.3. As regards Bill of Entry 320364 dt. 20/5/2002, a past import, Shri Velu Chandrasekar had deposed that the related invoice had been got prepared by M/s. Solar Impex, Singapore at his instance. It was found by the original authority that the invoice had been generated as required by Shri Velu Chandrasekar for a commission. Shri Velu Chandrasekar had stated that he had declared the price of SGD 60 per roll (24 x 50 yards) in the Bill of Entry based on the fabricated invoice as against the correct price of SGD 160. The Original Authority adopted the unit price determined in respect of similar goods covered by Bill of Entry No.436656 and enhanced the value to SGD 192 per roll (24 inch x 50 yards). As regards the Bill of Entry No.394234 dt. 12/12/2002 which covered 78 pieces of tools assessed on the basis of invoice No.202394 dt. 28/11/2002 for 2.4. In respect of Airway bill No.058 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te authority agreed with the findings of the Original Authority that 3. In the appeal, the following grounds have been taken by the assessee/appellant:- a. The appellate authority had wrongly rejected the plea of Shri Velu Chandrasekar that the statements recorded from him and relied upon in the show-cause notice were obtained under threat and coercion on the ground that the same was belated afterthought. Other witnesses viz. Shri Johnson had also retracted his statements. This showed that statements were in fact recorded under threat and coercion. There was no independent corroboration of these statements relied upon. The transaction value of goods covered by Bill of Entry No.436656 had to be determined by resorting to Valuation Rules covering import of identical or comparable goods. No attempt had been made in this regard by the investigating authority. The Adjudicating Authority had erred in adopting the value of window films at twice the declared value solely on the basis of statement of Shri Velu Chandrasekar. The appropriate valuation provisions in the Customs Valuation Rules were not resorted to determine the correct value. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l; this compared with adhesive paper with similar size of roll. As regards the Bill of Entry No.394234, it is challenged for the reason that enhancement of value was merely on the basis of an invoice found for the same items with a higher value than that declared without any corroborative evidence. As regards Bill of Entry No.416047, the enhancement based on the retracted statement of Shri John Antony Johnson was not sustainable without independent corroboration. Moreover, there was no admission whatsoever by Shri Velu Chandrasekar, in so far as under valuation of these goods. As regards the confiscation of goods under Section 111(f) of the Act, it is submitted that the provision applied only where the goods were not mentioned in the import manifest or import report. The manifest was filed by the person in-charge of aircraft. The appellate authority failed to appreciate that in the instant case goods imported in fact were mentioned in the import manifest. The confiscation was not in accordance with law. It is submitted that in the absence of mention of the relevant sub-clause of 112(a) of the Act, imposition of penalty of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gards the contents of the container but not with regard to value. It was held that evidence of contemporaneous import at higher value was required to enhance the declared value. e. CC, Chennai Vs. Sahara Enterprises [2006(206) ELT 548 (Tri. Chennai)] In this case, valuation done by the authority on the basis of quotation issued to another party more than 6 months earlier to the import in question was held to be not legally sustainable. f. CC, Chennai Vs. Metro Trading Co. [2006(206) ELT 625 (Tri. Chennai)] In this case, the determination of assessable value was held not sustainable solely based on a proforma invoice. 6. We have also heard the ld. DR for the Revenue. He has reiterated the findings of the lower authorities. 7.1.We have examined the case records and carefully studied the rival submissions. In this case, the appellant-assessee undisputedly mis-declared the quantity and value of the goods entered for clearance under Bill of Entry No.436656. Invoice submitted along with the Bill of Entry had been admittedly generated by Shri B.N. Satyarayana using the computer of M/s. MAA Logistics who had handled clearance of the goods. The empl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri. Velu Chandrasekar. As the findings are based mainly on the confession made by Shri Velu Chandrasekar, we find it appropriate to accept this claim of the assessee. Therefore, we find it appropriate that price of SGD 160 admitted to have been paid for such goods by Shri Velu Chandrasekar has to be preferred to SGD 192. The duty due shall be quantified on this basis. As regards the valuation of window films, the authorities determined the value to be twice the value declared in the Bill of Entry following the deposition of Shri Velu Chandrasekar. Even though the assesee/appellant furnished particulars of similar goods imported from several countries no particulars were furnished in respect of import of identical or similar goods. The authorities found that there were no contemporaneous imports of identical or similar goods. We find that having accepted mis-declaration of the description and value of the imported goods, it was for the importer to come forward and disclose the consideration exchanged for the import. Once the department showed that the goods have been undervalued, it cannot be faulted for following the deposition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be safely concluded that this consignment too was to be cleared by mis-declaration of value and description. I see nothing wrong in the lower authoritys action in confiscating the goods under Section 111(m). The contention of the appellants that the goods cannot be confiscated as the Bill of Entry was not filed has no substance. It is a clear case of willful mis-declaration. I do not intend to interfere with the findings of the lower authority. The Original Authority had ordered confiscation of the goods covered by the said Airway bill under Section 111(f) of the Act for mis-declaration of description of NIKKALITE brand Retro Reflective Sheet as self-adhesive paper. As per Section 111(f) of the Act, any dutiable or prohibited goods required to be mentioned under the regulations in an import manifest or import report which are not so mentioned are liable to confiscation. It is seen that confiscation has been ordered for mis-declaring description of the goods in the manifest. Therefore, we sustain the order of confiscation of the goods covered by the said Airway bill. 7.8 We find that in several statements under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facture of cylinders going on in the factory. What was the extent thereof, and what was the excise and penalty payable thereon are matters which cannot be decided in this petition. However, we are clearly of the view that the approach of the learned Tribunal was wrong and against the law. Once the department proves that something illegal had been done by the manufacturer which prima facie shows that illegal activities were being carried, the burden would shift to the manufacturer. It was impossible for the department to prove how many cylinders, were being carried in the trucks. However, if the department proves that the trucks crossed the barriers carrying some cylinders for which no record was maintained in the factory nor any excise duty was paid then the presumption can be drawn that the trucks were carrying cylinders as per the capacity of the trucks. The approach of the Tribunal that it was for the department to prove what was the quantity of goods carried in each truck which crossed the barrier and of which there is no entry in the records of the company is totally illegal. Once the illegal activity was proved, the burden shifted upo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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