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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 ..... ty of Rs.1,20,79,765/- with interest, with equal amount of penalty, has been disposed of by the Customs, Excise and Service Tax Appellate Tribunal by Ext.P13 order, directing the petitioner to pre-deposit an amount of Rs.60 lakhs within six weeks. It is also directed that subject to deposit of the above amount, there shall be waiver of pre-deposit of the balance of the dues as per the impugned order and stay of recovery thereof till the disposal of the appeal. Waiver of pre-deposit of penalties imposed on the two appellants has been granted and stay of recovery has also been ordered. It is mainly contended that the order 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings will have to be set aside. The Department has not relied upon any contemporaneous records to prove the price and the burden of proof in that regard has not been discharged. The petitioner has produced contemporaneous records as evident from Ext.P6 list of documents which were never considered. It is pointed out that the Tribunal has passed the order Ext.P13 mechanically and without assessing the reasonableness of the findings whether they are supportable on the materials relied upon by the department. It is also pointed out that the element of undue hardship is important to be considered in such cases. The petitioner 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been committed is not considering the same. 10. Before considering the contentions of the parties, it may be profitable to refer to the order passed by the Tribunal as per Ext.P13. After referring to the contentions, the Tribunal entered findings from para 6.1 onwards. In para 6.2 the Tribunal considered the sample findings in Ext.P9 in respect of one of the invoices. It is found that the same clearly refers the veracity of the details in the proforma invoices duly corroborated by amounts mentioned in the L.C. And T.T. and further corroborated by details collected from Malaysian Customs authorities. Therefore, the Tribunal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esh consideration by it as contended by the learned counsel for the petitioner. 13. The order Ext.P9 narrates the background and has rendered findings on each of the bill of entries. Various aspects have been discussed under each item. The findings on each items are reflected from internal pages 4 to 23. With regard to the question whether the evidence is acceptable, it was found at internal page 24 of the order that the details pertaining to value of goods abroad were obtained from customs formations in Malaysia, China, and Brazil through proper manner observing the necessary formalities mandated for such enquiries and the authority 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 Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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