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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 ..... Shri Atul Nanda, Sr. Adv. Ms Sikha (supra), Adv. Dr Prabhat Kumar, Adv. Shri Piyush Kumar, Adv. For the Respondent : Shri V K Singh, Spl. Counsel ORDER Per M V Ravindran All these bunch of appeals are arising out of similar Orders-in-Original No. CAO/120/2013/CAC/CC(I)/AB/GR-I dated 21.10.2013 and 81/2011/CC(I)/JNCH dated 28.02.2012 passed by the Commissioner of Customs (Import), Mumbai and Nhava sheva rejecting the transaction value of the imported and poppy seeds from Turkey. The adjudicating authority has confirmed the demands raised in various show cause notices and has also imposed penalties under Section 114AA and 112(a) of the Customs act 1962 on the appellant's firms and personal penalties on the individuals. Since all these appeals raise a common issue arising out of the common investigation they are being disposed off by a common order. 2. The applications for out-of-turn hearing of appeals are disposed of and appeals taken up as out-of-turn hearing applications in other similar matters were similar matters were allowed on 20.05.2015. 3. These matters were called on 30 June 2015 submission of Counsel for appellants were and on specific request of the learned D.R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has acted in complete ignorance of the stated position in law inasmuch the insurance documents and the value stated therein cannot be used as a basis for ascertaining the valuation as held by the Apex Court in the case of Orient Enterprises 1997 (92) ELT A 69 (SC) arising out an order passed by the Tribunal in the case of Orient Enterprises - 1986 (23) ELT 507; Christille Violene - 2005 (179) ELT 322; Nana Chaka private Limited - 2004 (163) ELT 464 and Mihir Enterprises - 2008 (227) ELT 75. (b) It has been submitted that the documents furnished by DRI before the adjudicating authority has sought to corroborate thereof all documents of insurance on the basis of documents received from the Indian embassy, Moscow under letter dated 30/10/2009 of the first Secretary Trade, embassy of India Moscow forwarding letter dated 14/10/2009 addressed by Deputy Director General (External), prepared and sent by Turkish authorities to the first Secretary Trade, Embassy of India, Moscow, supposed to be showing an invoice-wise comparative values of Indian declaration and compatible values at Turkish end. A perusal of these show the following: (i) The documents received from Turkish Customs were w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been forwarded by the agency to authorities i.e investigating agency through the official channels. The following case laws are relied upon for this proposition: 1. East Punjab Traders 1997 (89) ELT 11 (SC) para 5 2. V K Impex 2002 (141) ELT 564 affirmed by Supreme Court as reported at 2003 (158) ELT A 184 3. Adani exports 2009 (243) ELT 115 4. Venus Enterprises 2006 (199) ELT 661 5. South India Television Private Ltd. 2001 (136) ELT 243 6. Kainya and associates pvt. Ltd. 2006 (204) ELT 72 7. Taito watch manufacturing Industries 2004 (173) ELT 17 8. India optics P Ltd., 2000 (123) ELT 1022 9. Wings Electronics 2006 (205) ELT 1146 10. Truwoods Pvt Ltd. 2005 (186) ELT 135. 8.2 It was also submitted on behalf of the appellant that reliance placed on export documents/declarations has been held by the Hon'ble Courts to be fraught with the possibility of error as there is a possibility that the exporter declares a higher price in order to claim an incentive/higher incentive, the following case laws are relied upon South India Television Pvt Ltd. (supra), Taito Watch Manufacturing (supra), Truwoods Pvt. Ltd. (supra). 8.3 As regards the Department's reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g authority wishes to reject the transaction value as declared by the importer as being incorrect or unacceptable, the investigating agency has to bring on record material to show contemporaneous imports which would obviously include the date of contract, the date and time of importation at a view in price. It is the submission that in a situation like the one in these cases, the investigating agency has reasons about the truth and accuracy of the declared value, it may ask the importer to provide explanation for the declared value. It was further submitted that the term 'reason to doubt' does not mean include "reason to suspect", hence the investigating agency, if it suspects a transaction value, it must rely on the reasons for which investigating agency has documentation, it is the duty of the adjudicating authority to see the probative value of such documentation before rejecting the transaction value. They relied upon the following case laws: i. Agarwal Industries (2012) 1 SCC 186 ii. Eicher tractors Ltd. (2001) 1 SCC 315 iii. South India television (2007) 6 SCC 373 iv. Bureau Veritas (2005) 3 SCC 265 v. Sounds N images 2000 (117) ELT 538 (SC) vi. Satya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s very low hence the transaction value was rejected. It is the submission that on the phase of incriminating documents having evidentiary value the rejection of transaction value was correct and the submission that contemporaneous value should be adopted is also incorrect and it has been dealt by the adjudicating authority in the discussions and findings in the adjudication order. It is the submission that the case laws relied upon by the Counsel of appellants are not applicable in the cases in hand. It is the submission that in support of valuation of the imported goods reliance is placed on the following decision: i. Ispat Industries Ltd 2006 (202) ELT 561 ii. Rajkumar Knitting Mills 1998 (98) ELT 292 iii. Varsha plastics private Limited 2009 (235) ELT 193 iv. Agarwal industries Ltd., 2011 (272) ELT 641 9.1 It is the submission that once appellant has admitted to undervaluation and mis-declaration, he cannot turn around and state that valuation undertaken by the Department is not sustainable in law for this proposition reliance is placed on American eye light private Limited 2013 (290) ELT 720. 9.2 It is the further submission that after this case, the revenue has f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents were relied upon, which could not be used, even if they may have been forwarded by 'authorities' to the investigating agency through official channels. This law is settled by the Apex Court in the case of East Punjab Traders (supra). (b) 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. As regards the value on the insurance documents, Apex Court in the case of Orient Enterprises (supra) while affirming the judgement of the Tribunal; Christelle Violene (supra); Nina Chaka Pvt. Ld.(supra) held that the value declared for insurance purposes by the exporter cannot be the basis for redetermination of the transaction value as the exporter may have declared higher value for insurance purposes which may not be the correct value. As regards the issue or reliance on com trade and public ledger for redetermination of value of the imported goods, this lies also well settled in the favour of the assessee in the case of Prabhu Dayal Premchand (supra); Jindal Strips Ltd. (supra) (etc as listed at paragraph No. 3 at page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Shri Arun Kapoor had informed the Additional Director, D.R.I., by a letter that the statement which was recorded was during the period of his detention hence being one of the reason for retraction. This vital factual matrix which will have a bearing on the case has been ignored by the adjudicating authority; which to our mind has led to a conclusion that there was under-valuation. It is to be noted that long after retraction by Shri Arun Kapoor on 9 th December, 2006, the authorities have recorded his another statement on 8 th February, 2008. On perusal of statement dated 8 th February, 2008, we find that Shri Arun Kapoor has categorically denied the charge of under-valuation; which would mean that the statement dated 7th /8th December 2008, holds no evidentiary value and may not help the Revenue's case any further as there is paucity of other evidences as held by us here-in-above in other appellants cases. 10.3 In view of the foregoing, in the peculiar facts and circumstances of this case, it is to be held that the impugned orders are unsustainable and liable to be set aside and we do so. 10.4 As we have disposed of the appeals on the factual findings, we are not recordi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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