9911796707
TMI Blog2016 (2) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... y as well as the invoices presented at the time of import are manipulated. It is not on record that any query was made regarding the genuineness of these documents. The adjudicating authority has neither followed the principles of natural justice as indicated in the paragraphs above nor has he followed the correct legal principles to arrive at the transaction value. Therefore the case needs to be remanded for fresh adjudication. - Matter remanded back - Decided partly in favor of appellants. - C/86803-86805 & 86415/2014-Mum - Final Order Nos. A/1850-1853/2015-WZB/CB - Dated:- 24-6-2015 - Shri M.V. Ravindran, Member (J) and P.S. Pruthi, Member (T) Shri Anil Balani with Subba Reddy and Anil Mishra, Advocates, for the Appellant. Shri M.S. Reddy, Dy. Commr. (AR), for the Respondent. ORDER [Order per : P.S. Pruthi, Member (T)]. - The appeals are filed by the appellants M/s. Crown Lifters (Partnership concern), M/s. Crown Lifters Pvt. Ltd., Shri Karim K. Jaria (Partner of Crown Lifters and Director of M/s. Crown Lifters Pvt. Ltd.) and Shri Madan Lalwani, employee of CHA M/s. M. Dharamdas Co. against the impugned order dated 31-1-2014 passed by the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Brijesh Gala. During the time of investigations against M/s. Crown Lifters, two cranes were imported by them. The cranes were allowed clearance by Customs only after additional deposit of Rs. l crore and bank guarantee of ₹ 1.72 crores was given by them. Later another deposit of ₹ 50 lakhs was also made by them to get the clearance of the cranes. In his further statement dated 19-7-2012, Shri Karim Jaria admitted undervaluation in the import of cranes by M/s. Crown Lifters and M/s. Crown Lifters Pvt. Ltd. and submitted the correct CIF/FOB price of 35 consignments of cranes/accessories imported and stated that he had destroyed all correspondence/documents etc. related to the import of cranes. It was determined by Customs that out of the above 35 consignments, 14 consignments were cleared on under-stated values, 9 of which were cleared by Crown Lifters and 5 consignments by M/s. Crown Lifters Pvt. Ltd. 2.4 A show cause notice was issued culminating in the impugned order rejecting the declared values and re-determining them, ordering confiscation of 14 consignments with option to redeem on payment of redemption fine, confirming differential duty along with interest on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 138B(2) of the Customs Act, 1962, statements made by a person before any officer of Customs during the course of any enquiry cannot be taken as evidence without giving an opportunity of cross-examination. 4.2 According to the counsel, even the statements of Shri Karim cannot be relied upon as they were taken under duress and he was made to pay ₹ 1.5 crores for getting clearance of the two cranes which had arrived during investigations. There is no admission in any statement that the invoices have been manipulated. Contrary to the claim of the department, value of the cranes is entirely different because even after value has been enhanced by the officers, the price per kg remains much lower than what the department claims. 4.3 On the issue of valuation the contention is that they buy second-hand cranes in auction. Such cranes are generally available at very low prices. In some cases the auction is conducted by M/s. Ritchie Bros and cranes sold on as is where is basis , the payments made through regular banking channels as per the invoices raised on the appellants. They submitted chartered engineer certificates in respect of all cranes imported by them from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statement of Shri Madan Lalwani and that of Shri Vikram Jhangiani partner of M/s. M. Ramdas Co who allowed the former to conduct the customs clearance work. He maintained three accounts out of which one account (account No. 2) was under his exclusive control dealing with, inter alia, second-hand cranes. He advises the importers that if the price of the cranes is less than ₹ 40 per kg. by its weight, then Customs authorities will not accept it. He also referred to the statement of Shri Brijesh Gala who accepted that all hawala transactions were entered into by him in undervaluation of the cranes. He also referred to the statement of Shri Karim Jaria who admitted to the undervaluation in the import of cranes and the transfer of money by hawala route. 5.1 The ld. AR relied on the judgment in the case of American Eyelight Pvt. Ltd. v. Commissioner - 2013 (290) E.L.T. 720 (Tri.) to say that once the appellant has admitted to undervaluation and discharged the duty willingly, he cannot turn around and say that valuation done by Customs authorities is not sustainable in law. 6. We have carefully considered the submissions of both sides. 7. We shall first address the is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rijesh Gala through whom Shri Karim Jaria transferred money abroad by hawala has not even been made a noticee to the show cause notice. This is a vital unexplained missing link in the SCN when it is charged that Shri Karim Jaria transferred money through Shri Brijesh Gala. The department does not even find it necessary to make Shri Brijesh Gala a noticee on the charge of abetment to undervaluation in the import of the cranes. We are unable to appreciate these gaps in the proceedings. 7.2 The Counsel contended that cross-examination of persons whose evidence was relied upon such as Shri Brijesh Gala, was not allowed. In his findings the Commissioner simply brushes aside the request by stating that he does not find any compelling reason for offering the cross-examination. The Commissioner relies on various judgments to state that cross-examination is not a matter of right. We find that the reliance placed on these judgments is misplaced and misunderstood. The judgments need to be appreciated in their context. The Commissioner cannot rely on the judgments without first recording specific reasons for not allowing the cross-examination. In our view Shri Brijesh Gala is a crucial li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od to determine the value of the cranes. The Commissioner has not verified whether such a practice existed and if so, why ? 7.6 The Commissioner while justifying the value admitted by Shri Karim Jaria found them to be at par with values ascertained on the basis of prevailing market price of similar cranes. The records do not reveal anything about such enquiry and the market price determined. From where this market price was determined has not been brought out in the Order. After referring to the prevailing market prices for which there is nothing on record either in the SCN or in the Adjudication Order, the Commissioner jumps to a conclusion that the values admitted by Shri Karim Jaria in his statement dated 19-7-2012 are rightly taken as transaction value in terms of provisions of Rule 3(1) of the Valuation Rules read with Section 14(1) of the Customs Act. 7.7 The reliance placed by learned AR on the case of American Eyelight Pvt. Ltd. (supra) is completely out of context. In that case the value was determined on the basis of a market survey conducted in the presence of the appellant. No details of such exercise undertaken has been shown in the Order and therefore a sweeping ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
