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TMI Blog2013 (1) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... r has been passed by the Appellate Tribunal without considering the undue hardship caused to the petitioner and without considering the pleas on the merits. It is submitted that none of the questions have been considered in the real perspective. 2. The petitioner herein is a company engaged in the imported furniture business which was mostly being done from Malaysia and China. After importing, the same used to be sold in India. The present proceedings started after the Department, on the basis of some intelligence report suggesting under-invoicing, carried out a search in the premises of the petitioner including their showrooms and residence of their directors on 3.10.2006. They collected some documents including proforma invoices, files and registers and issued a show cause notice as per Ext.P1. After completing the investigation and other steps in the matter, an order was passed by the authority as per Ext.P7 finding that the petitioner is liable for under-invoicing in regard to 129 consignments which were already cleared. The same was set aside by the Tribunal by Ext.P8 order on the finding that there is non-application of mind and on other findings. Fresh adjudication order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner had to curtail the business from 2008 also. 5. As far as the pleas on the merits of the matter are concerned, it is submitted that merely because of the alleged declaration made by the exporters who have declared higher value for export, the conclusions ought not have been arrived at by the authority concerned. It is submitted that this aspect was not considered by the Tribunal. 6. Heard learned counsel for the petitioner Shri Madhu Radhakrishnan and learned Standing Counsel for the Department, Shri John Varghese. 7. Learned counsel for the petitioner submitted that Ext.P13 cannot survive for a moment. A reading of the same will show that the approach is totally mechanical. My attention was invited to the observations made in para 6.3 to show that there is total non-application of mind. It is submitted that the documents produced by the petitioner in 48 volumes have been discarded in a one single line. Various decisions of the Apex Court relied upon by the petitioner will show that the entire order cannot be supported. Placing reliance upon the materials as well as the findings rendered in Ext.P9, learned counsel submitted that the results of the investigation alone hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l was of the view that all these taken together, prima facie the appellants have resorted to gross undervaluation of the imported goods by adopting dubious methods. It is also found in para 6.2 as follows: "In the light of the several details in proforma invoices tallying with L.C. and T.T. and documents recovered from Malaysian Customs authorities, the Commissioner adopting the value declared to the Malaysian Customs authorities in respect of all the consignments cannot be held to be erroneous. Prima facie, the appellants have not made out a case on merits for waiver of pre- deposit of the duty demanded." In para 6.4 it was therefore held that the decisions relied upon by the appellants are not prima facie applicable to the facts of the present case where there is clear evidence of extra payments made by the appellant- assessee to the suppliers of furniture based in Malaysia. In para 6.5 it was observed that when the appellants have indulged in transferring money illegally for the purpose of importing furniture, the balance sheets which are relied upon by the appellant-assessee to claim financial hardship may not reflect true picture. After considering the submission that the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity does not find any reason to disbelieve the facts arrived at from such enquiries. It is also found that the proforma invoices and other documents recovered from the premises have inherent evidentiary value towards the goal of arriving at the actual transaction value of the goods under import. The question therefore is whether, by finding that prima facie the appellants have resorted to show undervaluation of imported goods by dubious methods, the Tribunal has erred any manner in arriving at a conclusion warranting interference by this Court under Article 226 of the Constitution of India. 14. Evidently, this Court is not exercising an appellate jurisdiction. What is of importance is only to notice whether the contentions have been considered at least prima facie and whether the order is too mechanical. A reading of the order will show that the Tribunal has considered the findings and has arrived at a prima facie conclusion that the appellants have resorted to under valuation of the imported goods after adopting dubious methods. The Tribunal has referred to the details collected under the investigation. Of course, detailed discussion on each items are not there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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