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TMI Blog2017 (8) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... bout their authenticity. He has simply received the said documents from another person in his organization. While they have handed over photocopies of the said invoices they are not in possession of the originals. It is not in doubt that they are competitor of the appellants in the market. The cross examination shows the contradictions as at one point he says he does not know who handed over the invoices at another point he seems to be sure who gave it to him - The documents produced in these circumstances cannot be straight away relied upon as true and correct. If revenue wished to rely on these documents they needed to corroborate it from the source of the documents. They should have conducted suitable enquiries directly from the office of Sartorius Germany. Reliance placed upon the manufacturers pricelists which were provided by M/s. SMIPL - Held that: - These pricelists for 2002 and 2006 are only zerox and unsigned copies and they are not certified by the parent company or by their officer. They are on plain paper and not on the letterhead of the Sartorius Germany. They do not bear any signature and logo of the parent company. The pricelists for the year 2003, 2005 and 2007 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Raju, Member (Technical) Shri Prakash Shah, Advocate with Shri H.O. Tiwari, Advocate for the appellant Shri M.K. Sarangi, Jt. Commissioner (AR) for the respondent ORDER Per: Raju These appeals are against the confirmation of demand and imposition of penalty, confiscation and imposition of redemption fine. The matter was heard earlier by different bench and both the Members (Judicial) and Member (Technical) passed different orders and the point of difference was referred to the third Member for resolution. This was followed by appellant filing a Rectification of mistake application which was considered by the same bench. In the ROM proceedings the Members differed on the issue of Rectification of mistake. The appellants meanwhile approached the Hon ble High Court of Bombay in writ petition. The Hon'ble High Court quashed and set aside the said orders. The High Court directed as follows:- 5. As a result of the above, this Writ Petition succeeds. Both the impugned orders are quashed and set aside. The Appeal shall now be re-heard by the West Zonal Bench. In order to put an end to the dispute expeditiously, we expect that the Appeal shall be assigned by the learned President to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said issue has already been settled by tribunal vide order No. M/1123/12/CSTB/C-1 dated 21.12.2012. Consequently the application is infructuous and is dismissed as such. 2.1 The appellant M/s. Sartorius Electro Equipment Pvt. Ltd. (SEEPL) was engaged in the import of Sartoriusbrand of Electronic Balances. Prior April 2005, the appellant was importing the said goods from M/s. Sartorius A.G., Germany directly and after April 2005 they started importing said goods from M/s. Ahmed Systems, LLC, Dubai (authorized distributor). Proceedings were initiatiated proposing confiscation of the seized imported goods and demanding differential duty on the goods imported during 5 years on the allegation of undervaluation. During proceedings various statements were recorded and documents seized. The key evidence, however, was the photo copies of invoices supplied by M/s. Sartorious Mechatronics India (Pvt.) Ltd., Bangalore (SMIPL). The demand was confirmed and penalties imposed on the strength of above evidence. Aggrieved from the said order, the appellants are before us. 3.1 The Ld. Counsel for the appellants submitted that they were authorized distributor of M/s. Sartorious A.G., Germany since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.2005 relied upon to challenge the invoice No. 3017002376 dt. 12.4.2005, even though signed, but it is for a different/later date than the Air Way Bill date i.e. after the date of Air Way Bill. As the appellants invoice is on letterhead of the supplier and duly signed and the same was raised prior to shipment and goods were despatched to India under Air Way Bill dt. 13.4.2005. He argued that the invoice dt. 14.4.2005 relied upon by the Revenue to discredit the invoice produced at the time of import by appellants dt.12.4.2005, is only a zerox copy and not the original. He argued that the invoices relied upon by the Revenue were not the part of any genuine record being maintained by the manufacturer located at Germany. He argued that the appellant has provided the authentic copies of invoices raised by the manufacturer upon M/s. Ahmed Systems LLC, Dubai. and invoices raised by M/s. Ahmed Systems LLC, Dubai on the appellant. He argued that these invoices clearly establish that the Dubai Distributor has purchased the goods supplied at lower price and sold them at much higher price to the appellant which has shown by the appellant before the Customs authorities at the time of clearance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d import price could not be accepted. Ld counsel argued that in these circumstances the rejection of transaction value merely relying on the pricelists obtained from 100% subsidiary of supplier located in India showing higher unit price is without logic. In support this contention is also placed on the following decisions:- (i) Gujarat Ambuja Cements Vs. CCE [2003 (157) ELT 188 (CESTAT)] (ii) Andhra Sugars Vs. CCE [ 2006 (193) ELT 68 (CESTAT)] (iii) Agarwal Industries Vs. CC [2006 (193) ELT 421 (CESTAT)] (iv) Aditya Fuels Vs. CC [2006 (201) ELT 464 (CESTAT)] (v) Puspanjali Silk P. Ltd. Vs. CC [2009 (238) ELT 135 (Tri.).] 3.6 Ld counsel sought to challenge the pricelists for the year 2002 and 2006 obtained by revenue on the following grounds (i) pricelists are only zerox and unsigned copies. (ii) pricelists are not certified by the supplier of the goods or from their authorized officers. (iii) pricelists are not on the letterhead on the parent company and does not bear sign or logo of the parent company. He further argued that the pricelists for the year 2003 to 2005 and 2007 which are claimed to be evidencing transfer price to the 100% subsidiary are neither manufacturers price lis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted goods cannot be relied to reject the declared transaction value. 3.10 Ld counsel further argued that the seizure of goods imported under bill of entry No.322376 dt. 25.10.2007 stands dissolve as to show cause notice under Section 124 of the Customs Act, 1962, has been issued beyond the period of six months stipulated under Section 110(2) of the Act. He relied on the decision of Jatin Ahuja Vs. Union of India reported in 2013 (287) ELT 3 (Del.). He further argued that as there is no mens rea , therefore penalties are not imposable on the appellants. He argued that the issue of corrigendum is not sustainable as it changes the whole terms of the order. 4 Ld. AR argued that there is clear evidence of suppression of value. He argued that contemporaneous imports of identical goods by other companies, the NIDB data and the manufacturer price list by 100% subsidiary and the domestic sale price of the model by the appellants clearly establish undervaluation. He argued that the appellants tried to prove the status of the authorised dealer of the German supplier and relied on the certificate of 05.06.1997 of the German supplier. However, it is a fact that the appellants could not produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoice provided by the appellant i.e. invoice No.3017002376 dt. 12.4.2005 is on letterhead of the supplier and duly signed and same was raised prior to shipment under Air Way Bill dt. 13.4.2005, but the invoice No. 3010087902 dated 14.04.2005 relied upon by the adjudicating authority has been issued after the date of the Air Way Bill through which the goods were supplied to the appellant and is a zerox copy not the original document. The adjudicating authority in the impugned order has given his findings as under:- 20.2.2 The unsigned invoices were forwarded by authorized signatories of the Company under cover of the above letter. These days no company keeps signed office copies of invoices in letter heads. Further the person who signed the original invoice may not be in the service of the company. While taking print out from old data taking it on any letter head adds no value to the document. The document supplied were not original invoices issued for transactions but only print out form computer database of the company which issued the original invoices. So there is nothing to be surprised that it is not on official stationery. The point to be noted is that these documents were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es on the correctness of the data included in certain invoices/price lists supplied by SMIPL and relied by revenue. Incidentally all these documents have been supplied by SMIPL and they happen to be the appellants competitor. 5.3 There is no evidence of the genuineness of the letter dated 3/3/08. The letter seems to be written in response to meeting of one Mr Nath, consultant of SMIPL, with some Customs officer. The letter is addressed to Customs officer but sent to SMIPL and not directly to the customs officer. Now we examine the content of the letter dated 3 rd March 2008 submitted by SMIPL to Customs. It has been claimed that the said letter has been issued by Karl Heinz Bofenemann of Sartorious Germany. The said letter clearly admits that due to involvement of an employee wrong business transactions with the appellants were not as per company policy. It does not disown all the invoices issued during that period. It does not say if the past transactions were made at low prices or just the invoices were wrongly issued. It does not say if the differential price has been recovered from the appellant. The letter only disowns one transaction relating to order no s/1948. The letter do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure? Ans. Some are signed. Some are not signed. Iam not able to identify the signature. Q.15. Invoice Nos.3010082044 is unsigned. Invoice No. 3010087902 is signed by Miss Angelika Preiss. While Invoice No.3010194713 and 3010101580 to Ahmed System LLC are both unsigned. Is it correct? Ans. Yes Q.16. See Invoice No. 3010194713. This does not bear the Sartorius Logo whereas the other three invoices bear the Logo of Sartorius and the addresses of their offices at other locations? Ans. Yes. Q.17 How long have you been working in Sartorius Mechatronics India (P) Ltd Are you familiar with invoices coming from Sartorius Germany to your company Are they signed and having their Logos? Ans. I have been working for 7 years. We do not go deep to verify whether each and every invoice is signed. Q.18 Are you aware of the policy of German Company in keeping office copies of invoices? Ans. I am not aware. Q.19. I put it to you that these invoices were farbricated and received by you? Ans. I donot know whether it was fabricated. Q.20. Please give the address of your consultant Mr. Nath.? Ans. I do not have his address with me right now. QUESTION PUT BY THE ADJUDICATING AUTHORITY. Q.21. Kindly see yo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany. The pricelists for the year 2003, 2005 and 2007 produced by SMIPL cannot be relied as their source has not been verified and as same are not authenticated or certified by the parent company. The Revenue has not verified genuineness of the pricelists or the invoices relied upon from the principal manufacturer in Germany. These unsigned and unauthenticated documents, which are not on the letterhead of foreign principal cannot be relied to sustain the charge of undervaluation. Moreover merely pricelists of the foreign supplier/manufacturer cannot be considered as a proof of transaction value. Hon ble Apex Court in the case of Eicher Tractors Ltd. (supra) and Tribunal in the case of Deepak Enterprises (supra ) has held that transaction value cannot be rejected solely on the strength of price list or proforma invoice. In these circumstance we do not find that these price lists are enough to reject the declared transaction value. 5.7 Now we examine the evidence of NIDB data of CONTEMPRANEOUS IMPORTS listed in para 6 of impugned order. 6. NATIONAL IMPORT DATA BASE (NIDB) DATA SHOWING VALUE OF CONTEMPRANEOUS IMPORTS BY OTHER NON RELATED IMPORTERS 6.1 Printer model YDP 03 OCE 6.1.1 Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09.2005 at Euros 837.00. 6.4.2 The models GC 1603S OCE were imported by M/s Chiron Instruments under their B/E No. 590318 dt. 27.03.2006 at Euros 716.00. 6.5 GC 803S 6.5.1 M/s Radhakrishna Exports declared the values of the models at Euros 662.00 in their B/E No. 928521 dt. 19.02.2007. 6.5.2 On the other hand M/s SEEPL during 2004 to 2007 declared values for the model GD 103 at Euro 70.00 in their imports from M/s Sartorius AG, Germany (nine B/Es) and then at US $ 70.00 in their imports from M/s Ahmad Systems LLC, Dubai (13 B/Es). The values for the model GD 603 were declared at Euro 95.00 (one B/E) and Euro 100.00 (nine B/Es) in their imports from M/s Sartorius AG, Germany and US $ 95.00 (three B/Es) in their imports from M/s Ahmad Systems LLC, Dubai. 6.5.3 The values for the model GC 1603S-OCE declared by M/s SEEPL were only Euro 158.00 for their imports from M/s Sartorius AG, Germany and USD 158.00 for their imports from M/s Ahmad Systems LLC, Dubai throughout the period of investigation. 6.5.4 The date pertaining to imports of other importers of Sartorius electronic balances is available for other models and other importers also. This data also indicates that M/s SEEPL have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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