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TMI Blog2020 (2) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... n both the cases, penalty has also been imposed on Shri H S Chadha, who is also in appeal before the tribunal in both the cases. 2. The appellants M/s Indo Silicon Electronics Pvt Ltd and its Director Shri H S Chadha are in appeal against the order-in-original dated 03.03.2016 wherein the Ld Adjudicating Authority have:- a. Rejected the declasred value under Rule 12 of Customs Valuation Rules 2007 and redetermined the value. b. Confirmed the differential duty demand of Rs. 55,17,472/- for the past imports, and Duty of Rs. 1,64,800/- and Rs. 1,38,919/- for Bills of Entry Nos 6708636 and 6708637 both dated 10.03.2014 c. Ordered for recovering interest under section 28AA of the Customs Act 1962 d. Imposed Penalty of Rs. 55,17,472/- under Sections 112/114A & 114AA of the Customs Act 1962. e. Imposed Penalty of Rs. 10,00,000/- under Sections 112/114A & 114AA of the Customs Act 1962 on the Director of M/s Indo Silicon Electronics Pvt Ltd, namely Shri H S Chadha f. Duty of Rs. 4,74,512/- deposited and Bank Guarantees furnished during Provisional Release were appropriated 1. The appellants M/s Vortex Rubber Industries Pvt Ltd and Shri H S Chadha are in appeal against the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H S Chadha was shown email dated 13.04.2014 exchanged with Mr Gurbir Singh Kandhari having quotation for Infinity Brand tyres, for which he stated that sometimes they were further able to secure more discount on these quoted prices. 5. In his statement on 24.09.2014, Shri H S Chadha stated that he had seen emails dated 12.05.2014, 13.04.2014, 14.05.2014, 19.03.2014, 13.02.2014, 25.03.2014, 06.04.2014, 09.03.2014 exchanged with Gurbir Singh Kandhari regarding supply prices of Infinity Brand Tyres and he accepted them as true prices and would have no objection if the same was taken for assessment of import of Infinity Brand tyres. 6. Shri H S Chadha's statement was recorded again on 26.09.2014, and was shown a table on the basis of his emails (reproduced in the SCN). He said that he had no objection if these values were taken for calculating his duty liability. He then submitted that these were quotations and final price was negotiated and charged by the supplier as displayed in the invoices. 7. Shri H S Chadha's statement was recorded again on 12.11.2014, and was shown a table on the basis of his emails with respect to Wembley brand of tyres exchange with Ms Christgau of Guan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t had filed an appeal before the Ld Commissioner (Appeals) who dismissed the appeal by Order-in-Appeal No. CC(A) CUS/D-II/Prev/NCH/217-218 dated 27.05.2019. Aggrieved by the said order-in-appeal, the appellant is in appeal before us. 10. Assailing the impugned orders Shri Aakarsh Srivastava, Ld.Counsel for the appellants states that the impugned order has been passed in a mechanical manner without appreciating that the prices as reflected in the the emails are only quotations and not the final price and thus cannot be relied for value enhancement of the goods, as has been held by this tribunal Delhi in Sai Impex vs Commissioner of Customs 1992 (62) ELT 616 confirmed by the Hon'ble Supreme Court in 1996(84) ELT A47, and of this tribunal in Nava Durga Enterprises vs Commissioner of Customs (Sea Import) 2013 (295) ELT 277. He submits that the impugned order has been passed only on the basis of statements of Director of appellant and quotations received on emails, and these cannot be the basis to enhance the value of the goods since it is trite law that statement can be relied upon only if they are voluntary and true. It can be seen from the various statements of the Director recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saction based on arms length. He submits that the Department has not shown evidence of any contemporaneous imports or NIDB data to show undervaluation and so the invoice value should have been accepted and the transaction value itself could not have been discarded, as has been held by the Hon'ble Apex Court in the matters of * Commissioner of Central Excise and Service Tax, Noida Vs Sanjivani Non-Ferrous Trading Pvt Ltd (2019) 2 SCC 378 * Commissioner of Customs Vs South India Television Pvt Ltd (2007) 6 SCC 373 * Commissioner of Customs Vishakhapatnam vs Aggarwal Industries Ltd 2011 (272) ELT 641 * Commissioner of Customs, Mumbai vs Mahalaxmi Gems 2008 (231) ELT 198 * Commissioner of Customs Mumbai vs J D Orgochem Ltd 2008 (226) ELT 9 12. Ld Counsel states that the Department has not adduced any proof to show any extra payment of the alleged undervaluation amount through unofficial channels and the amount declared in the Bills of Entry is the actual value which has been paid only through proper banking channels and so the transaction value cannot be rejected since there is no evidence of any higher amount being paid to the supplier and seeks to rely upon the order of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appeals be dismissed. He further urges that admittedly MRP/RSP was not found on some of the tyres in the ground of Vortex. Further it is admitted fact that the parallel invoices were found in the emails exchanged between the appellant and the suppliers. He further states that rule 3 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 (for short Valuation Rules) have been followed for the determination of value for the rejection of the declared value. He further refers to annexure B to the SCN and states that value has been redetermind of the imported goods as per rule 3 of the valuation rules. He further refers to whether 17 of the SCN in case of Vortex wherein Mr HS Chadha in his statement after going to the emails with Shri GS Kandhai of Al Dobovi along with invoices raised by him regarding supply of Infiniti brand tires of different categories. After going to the printout of the emails he signed on the printouts as token of having seen and accepted them as true prices at which the imported the consignments of Infiniti brand tyres and would have no objection if the same were taken as the basis for assessment of import of Infiniti brand tyres th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion value cannot be disputed and negated without any cogent material. 19. Further we find that no copy of the emails on which the Department seeks to rely has been made as RUDs. Emails and other electronic evidence cannot be relied upon to prove undervaluation in absence of compliance of provisions of Section 138C of the Act ibid as held by Anvar P. V (supra) and S.N.Agrotech(supra). It is trite law that statements can be relied upon only if they are voluntary and true. It can be seen from above that all the statements of the Director Shri H S Chadha recorded on 16.07.2014, 25.08.2014, 24.09.2014, 26.09.2014, 12.11.2014, are conflicting. There are many such instances in the statements of the appellants which have been brought to our notice by the Ld Counsel but the Department has picked only those which support it while discarding those which support the appellant. Thus statements of Shri H S Chadha cannot be relied upon and given credence to substantiate the Departments claim of undervaluation without any corroborative evidence and the charge of undervaluation cannot be made out on mere assumptions and presumptions especially since he himself has stated on various occasions that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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