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TMI Blog2016 (2) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... rtified as true copies. It is to be noted that the originals have not been made available even to the Tribunal and unauthenticated and unsigned documents were relied upon, which could not be used, even if they may have been forwarded by 'authorities' to the investigating agency through official channels. As regards the insurance documents as well as entries from Comtrade and UK public ledger and other journals it is now well settled law that such information cannot be used to doubt or reject the transaction value. We also note that the adjudicating authority has refused to look at other contemporaneous imports, which are not the subject matter of the present show cause notice on the ground that there was gross undervaluation being done by the trade. We find that if the value of contemporaneous imports were accepted and the transaction value in those case are not doubted by the revenue in the assessment orders, it is not understandable why the said values could not have been used for the purposes of comparing the same with the value of the consignments in question in these appeals. It is to be held that the impugned orders are unsustainable and liable to be set aside and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roup comprising of Vibha Bhatia, Raju Bhatia, Rakesh Kumar Co., Americn Almonds, Uttam Impex, Motilal (c) The Sunder Lal group comprising of Sundar Lal and Uttam Chand Sunder Lal. 5. Filtering out the unnecessary details, the relevant facts that arise for consideration are on information received by the DRI, searches were conducted simultaneously in the offices as well as residential premises of the appellants firms and their partners. The following documents were recovered: (a) Foreign export declarations made by Turkish exporter which were submitted before the Turkish Customs authorities allegedly showing a higher value as compared to the declaration made by the Indian importer. (b) Foreign Turkish insurance documents filed by the Turkish supplier while insuring the goods. In furtherance to this the DRI received information/evidence from the Indian embassy in Moscow, said to be the documents forwarded by Turkish Customs, which in turn were forwarded to the DRI and are (a) For them export declarations made by Turkish exporter which were submitted before Turkish Customs showing a higher value as compared to the declaration made by Indian Importer; (b) For in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arative statement is completely black about and all, if not majority of the entries have been redacted and cannot even be read; those what can be read does not contain the name of appellant; (iii) the perusal of the letter dated 14/10/2009 addressed to Deputy director-general, external relations, Turkey would show that that is not even a whisper of the word poppy seeds and further that even the subject line of this letter reads WC O recommendation 1953 without any reference to any consignment or appellants herein; (iv) While the table of B/E values said to be received from the Turkish Customs is 59 entries relied upon by the adjudicating authority in the impugned order, in fact the number of documents said to be received under the letter of Indian embassy, Moscow and which were annexed to the corrigendum dated 04/04/2011 and listed and relied upon only show 16 sets of documents actually received; (v) even these documents received pertained to only Ratanlal group as seen from the list of relied on documents and there are no documents as regards any of the other entities; (vi) the number, nature and contents of such documents said to have been received from Turkish Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uses such date to arrive at new price. In doing so the adjudicating authority has grossly erred in taking this approach as it has been consistently held by Courts that such trade bulletins, weekly reports, industrial data etc cannot be taken as the basis for valuation. It has been held in the following cases: i. PrabhuDayal Prem Chand (2010) 13 SCC 535 affirming the order of Tribunal as reported at 2003 (156) ELT 922; ii. Jindal Strips Ltd. 2001 (133) ELT 570 iii. Drunkeyexports P Ltd. 2004 (165) ELT 417 iv. Dhirish International 2005 (187) ELT 94 v. Sangeeta metal (India) 2002 (140) ELT 306 vi. Ruchi associates 1992 (59) ELT 155 affirmed by Supreme Court as reported at 1992 (61) ELT A 134 vii. Radha V company 2003 (156) ELT 810. 8.4. The Counsel for appellant further argued that under the Customs Act, 1962, duty is chargeable on goods. As per Section 14(1) assessment of duty is to be made on the value of the goods. Rules have been framed which are known as the Customs Valuation (determination of Price of Imported Goods) Rules, 1988 (hereinafter referred to as Valuation Rules). Under rule 3.1, the value of imported goods shall be the tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gujarat Ambuja Cement Ltd. 2003 (157) ELT 188 xii. Tapan trading CO. 2001 (128) ELT 456 xiii. Kumar associates 1993 (65) ELT Firebird. 8.6 It was pleaded that the appeals be allowed and impugned orders be said aside. 9. Learned Special Counsel and SDR appeared on behalf of the revenue. They supported the impugned order by submitting that the nature of the documents as discussed in the show cause notice and its evidentiary value has been thoroughly examined in the impugned order and it is based on sound reasoning. It was the submission that there was under valuation to the extent of 30% to 40% of the actual price in respect of the poppy seed imported from Turkey. It was also submitted that the differential amount is sent to the suppliers by unofficial channels, the assertion of the appellants that the entire amount has been sent through banking channels is incorrect. He would submit that the statements of Shri Arun Kapoor coupled with others were recorded and there was no protest nor it is recorded under duress. It is the submission that though the retraction of the statements were made, it is not made to the same authority hence it seems to be an afterthought. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imported consignments. 10. On perusal of the records and hearing both sides, we find the issues which arise for determination in these appeal are (a) Whether insurance documents can be relied upon for the loading the transaction value of the consignment/goods (b) whether the copies of documents export declarations submitted by the foreign supplier/exporter can be relied upon for enhancing transaction value (c) whether com trade, UK public ledger and like sources of the information can similarly be used to enhance transaction value declared by the importer. (d) whether penalties need to be imposed on the appellants. 10.1 On consideration of the rival contentions and perusal of records, the following position emerges: (a) The revenue relied upon copies of export invoices and declarations submitted by the suppliers/the exporters before the Turkish authorities. This is evident from reading of paragraphs 9.1.1.1 of the 2 nd corrigendum issued and the revenue has relied upon 18 (sic 16) bills of entry to charge undervaluation. A perusal of the letter dated 30/10/2009 addressed by first secretary, Moscow to the additional director general of DRI, seems to suggest that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the adjudicating authority has incorrectly relied upon the values of poppy seed's by considering the same from Comtrade and UK public ledger. In our view the finding on this point are incorrect and not in consonance with the settled law. (c) We also note that the adjudicating authority has refused to look at other contemporaneous imports, which are not the subject matter of the present show cause notice on the ground that there was gross undervaluation being done by the trade. We find that if the value of contemporaneous imports were accepted and the transaction value in those case are not doubted by the revenue in the assessment orders, it is not understandable why the said values could not have been used for the purposes of comparing the same with the value of the consignments in question in these appeals. It is also said along that the Department has to first reject the transaction value and then follow the rules as laid down from rule 5 to 9 of the valuation rules in order to arrive at the value for discharge of Customs duty. From the entire records we find that this does not seen to have been done. In addition, we find that the documents which have come from the forei ..... X X X X Extracts X X X X X X X X Extracts X X X X
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