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TMI Blog2019 (8) TMI 1518X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal (CESTAT, for short), East Regional Bench, Kolkata in MA Em Nos. 75388-75395 of 2018 and Customs Appeal Nos. 75687- 75694 of 2018. The relevant portion of the order is reproduced as under : "Suffice it to observe that the impugned judgment, in our opinion, is very sketchy and cryptic. It does not deal with every aspect that ought to be gone into in deciding the statutory appeal both on facts and on law. We refrain from examining the contentions available to the parties on merits and instead relegate the parties before the Appellate Authority for reconsideration of the appeal afresh on its own merits and in accordance with law. The impugned judgment and order is set aside. The parties are relegated before the Appellate Authority for the reconsideration of the appeal afresh." Accordingly, the matters were taken up together as the issue involved in these cases arises out of common investigation pertaining to import of slack wax and residue wax, during the period 2008 to 2012 by various importers, namely: (i) Shree Hari Wax-O-Cam Pvt. Ltd.; (ii) Shiv Chemicals Industries; (iii) Deep Jyoti Wax Traders Pvt. Ltd.; (iv) Chowdhury Udyog, Kolkatta. All these firms were t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uently, premises of some importers and Custom House Agents (CHAs) were searched simultaneously on 02.02.2012 at various locations in Kolkata including the office premises of M/s. Chowdhary Udyog (Importer Exporter Code- 0291002145), located at (i) 23A, N.S Road, 1st floor, Room No.26, Kolkata- 700 001, (ii) 40B, Ground floor, Hindustan Park, Kolkata-700 029. Some documents were recovered from the said premises and seized under reasonable belief of those being useful in the investigation. Among the aforesaid recoveries from M/s. Chowdhary Udyog, the ones worth special mention were : * A Sales Contract No. SC035-SPO-2011 dated August 5, 2011 between the seller M/s. PT. KIMIA YASA, Indonesia and the buyer M/s. Magna Dealers (P) Ltd., Kolkata (India) for supply of 82.5 MTS of SLACK WAX SPO GRADE (Pertamina Origin) at the Unit Price of USD 1180/MT in CNF Calcutta-terms. * Another incriminating material, showing higher value, recovered from the spot was a series of e-mail communications from 3 Dec., 2011 to 23 Dec. 2011 between Mr. Pawan Kumar Chowdhary, Partner in M/s. Chowdhary Udyog with one Ms. Amreena Reeha of International Petrochemicals Pvt. Ltd. of Lahore, Pakistan offering I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own General Trading Co., M/s. Lubritech Trading FZE, M/s. Behran Oil Co., M/s. Grand Dignity Industrial Co. Ltd., M/s. Yazd Foundation Trading F.Z.E., M/s. Rine Universe Trading Co. LLC, M/s. Bastan General Trading Co. (L.L.C.), M/s. Pars Oil Co., M/s. Sepahan Shimi Tejarat Co., M/s. Rich Venture LLC, M/s. Fajr Tabandeh, M/s. Sun Impex FZE,M/s Jemasco Utama Pt, M/s PT. Kimia Yasa etc., from many of which subject importer M/s. Chowdhary Udyog have imported Slack Wax/Residue Wax. The account statements in respect of supplies coming from M/s. GFEC, Iran and Harmony Impex, UAE, as detailed in the forthcoming paras, is said to reveal the modus operandi adopted by these suppliers, whereby part of the transaction value was received in advance and remaining part of it was reflected in the Invoices raised by them for receipt of that amount through bank. 5. Account statement- During investigation by the DRI, Tuticorin, it was found that one person namely Shri Ramdeb Purba has been in overall charge of import and sale of Waxes in respect of the firms- i) M/s Abhishek International i.e AI and ii) M/s Shri Abhishek International i.e SAI. During search operations by DRI, Tuticorin, details rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Invoice(d) amount as shown in the Account statement sent by Shri Massoud Moussighi by e-mail to Shri Purba. But the difference in the actual (shipped) price and the Invoice(d) value of the Slack Wax was not explained anywhere. 8. Proforma Invoice - The seized print-outs of e-mails downloaded on 30.09.2011 included correspondences of the Tuticorin-importer with one, Mr. Massoud Moussighi of M/s Global Future Expander Corp, Iran (M/s GFEC, for short), who had sent 3 Proforma Invoices. Contents of the said 3 Proforma Invoices are tabulated below: TABLE-1 S.No No. & Date Description Quantity (MT) Unit Price USD/MT (C&F) Invoice (USD) Port of Loading 1 083102009 & 31.08.2009 Slack Wax 43 735 31605 Bandar Abbas, Iran 2 08312009-1 & 31.08.2009 Residue Wax 72 520 37440 3 10242010 & 24.01.2010 58 535 31030 9. Scrutiny of the import documents pertaining to M/s AI revealed that the above mentioned 3 Proforma Invoices received from Mr. Massoud Moussighi of M/s GFEC, Iran happened to correspond to 3 Invoices bearing nos. A1808 & A1809 both dated 22.09.2009 and A1895 dated18.03.2010 which were submitted by M/s AI to Customs while importing Slack Wax and Resi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s SPPPL) who had imported Slack and Residue Wax through Cochin Port. Details of the imports made by M/s SPPPL are tabulated and furnished below: TABLE-2 Sl.No. Bill of Entry & Date Description Qty. (MT) Price (USD/ MT) (CF) Supplier 1 272322 23.06.2010 Slack Wax 13.18 740 Remel Inter-national, UAE 2 272641 29.06.2010 Light Slack Wax 17.15 750 Global Future Expander Corp.(GFEC) 3 272642 29.06.2010 Heavy Slack Wax 33.79 730 4 3192733 04.12.2011 Abadan Slack Wax 17.41 920 Harmony Impex FZE Iranol Slack Wax 35.03 950 5 4778991 28.09.2011 Residue Wax 17.02 870 Abadan heavy Slack Wax 17.02 1020 Iranol light Slack Wax 34.044 1040 12. On comparison of price declared by M/s SPPPL with that of Account statement sent by Shri Massoud Moussighi of M/s GFEC and M/s Harmony Impex FZE to Shri Purba, it is apparent that price declared by M/s SPPPL is very closely in conformity with the 'shipped price' given in the Account statement for comparable goods during relevant periods. 13. In his statement dated 24.01.2013, Shri Ramdev Purba stated inter alia that his official e-mail id was abhisekinidia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onesia origin 14. From the import data, it can be made out that the major suppliers of Slack Wax of Indonesia origin to India are : M/s. Jemasco Utama PT (the most regular and perhaps the largest of all the Indonesian slack wax suppliers to India in terms of volume), M/s. Pawa Brothers Trading Pte Ltd, M/s. M.K. Synergy SDN. BHD., M/s. Pt. Pertamina (Persero)- a trade wing of Pertamina refinery of Indonesia, M/s. Grand Dignity Industrial Co. Ltd., M/s. Niku Exim International Pte Ltd., M/s. Straits Petrochemix Pte Ltd, M/s. Beitjik Djojo, M/s. Pt. Laban Raya Cakrawala, M/s. Pt. Kimia Yasa Chemical Trading, M/s Pt. Jemas Co Utama etc. from few of which subject importer M/s. Chowdhary Udyog have imported Slack Wax. 15. Similar mechanism of under-invoicing appeared to have been adopted for import of Slack Wax of Indonesia origin. During search operation at various locations and otherwise in the process of investigation, several incriminating details including clandestine account statements of the foreign suppliers and their Indian agents, reflecting transaction prices of the goods 2008-onwards, have been recovered which clearly showed that, the invoices placed through banks for r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the TT Transfer was not effected instantly and the price was raised by USD 12 per M.T., which was adjusted on the amount of down payment only, thereby keeping the Invoice price constant at USD 420 per M.T. From the hand-endorsed record maintained by Shri Sandeep Gupta on the said sheet about three contracts (MKS 31, 32 & 33 ) respectively, it appeared that the original contracted price was USD 720 PMT, wherefrom USD 300 PMT was to be transferred by TT as down payment and remaining USD 420 PMT was to be reflected in Invoice for remittance through Bank. On rise in the price, further calculation endorsed by Shri Sandeep Gupta for the three contracts respectively is as below: As per the above details thus, the transaction value of the material supplied by M/s. M K Synergy to M/s. Vaishali Wax Products and M/s. Barasat Wax Refiner was USD 732 per MT (CIF) under contract Nos. MKS/31-12/07 and MKS/32-12/07 respectively. The third contract MKS/33- 12/07 was cancelled for Vaishali and diverted to another importer who agreed to a net price of USD 790 PMT. The figure receipted by M/s. M K Synergy USD 12923.81 (i.e. USD 460 against MKS/31-12/07 plus USD 12463.81 against MKS/32-12/07) matc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the new price of USD 950 PMT CIF, it was asked of the importer to send them the difference, 'quickly', '100%'. The differential amount reflected in the letter is USD 170 per MT (i.e. New Price USD 950 - Old Price USD 780 PMT), which for net quantity of 19 MT worked out to USD 3230, the amount demanded as difference. The said letter dated 05.03.2008 also bears some calculations made in hand thereupon by Shri Sandeep Gupta about the differential amounts required to be sent by the importers to the supplier as per the new rate, after adjustment of commissions and the balance outstanding in their account, etc.[Annexure-G/Pg.19] ix. Copy of letter/e-mail bearing ref : VAS/2008/28 dated 05th March 08 to Mr. Silva of M/s. MK Synergy SDN BHD, subject : "CONTRACT NUMBER MKS 37/ MKS 38 AND MKS 39 - OF US STANDS CANCELLED WITH YOU. PLEASE TRANSFER THE ADVANCE MONEY TO OUR NOMINATED ACCOUNT SOON. NO DELAYS." The said letter addressing Mr. Silva stated inter-alia that he had quoted so high price that the said importers were left with no option but to cancel their standing orders with him and ask the other supplier, who was offering them the material, to supply; That they (the importers) re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd' being shown as USD 974.00 out of the total amount of USD 42500 received as down payment. (d) Besides, the page bears certain hand-written endorsements made by Shri Sandeep Gupta of M/s. Kavya International, bearing calculations in respect of different combinations of importers on the basis of the rates of down payment indicated in the aforesaid chart. xi. Copy of Proforma Invoice No. IND 2490308 dated 06.03.2008 of M/s. Jemasco Utama Pt. raised on M/s. Barasat Wax Refiner for supply of 'Slack Wax - Grade SPO' @ USD 400 per MT; Term of payment : Down Payment and Balance cash against Documents at sight, payable at the day original dox reach bank', signed Thomas Bouhier for Jemasco Utama, p.t. , and bearing Bank details as : PT. Bank Mandiri (Persero), Branch Bintaro, USD A/C 128.0004178007[Annexure-G/Pg.22]. xii. In contrast to the above, copy of Invoice No. 05-23-220/08 dated 13.03.2008 of M/s. Jemasco Utama Pt. raised on M/s. Barasat Wax Refiner @ USD 400 per MT; Term of payment : Payment against Documents at sight, immediately after the documents arrive at buyers bank', signed Thomas Bouhier for Jemasco Utama, pt[Annexure-G/Pg.23]. xiii. On similar line, copy of a cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various industrial commodities such as slack wax, polymers, chemicals etc. * His main job is to act as an intermediate sourcing agent and coordinate between the supplier abroad and the importer in India, for which he gets quantity based commission. * ormally the agreed value between the supplier and the importer are not the value declared in the invoices. * He has seen the sheet marked with No. 59 titled "Down Payment Vs. Invoices" [Annexure-G/Pg.21 of SCN] pertaining to the month of March 2008, contained in a file seized from his office on 29.11.12, and on being asked to explain he stated inter alia that: - Actual value of slack wax per MT is mentioned on that sheet; - "CAD" means 'Cash against documents', that is value as per the documents, and the same is found to be very less and also mentioned against this is 'via bank', that is the payment made through bank; - The difference between the actual value and the value in documents is mentioned as "down payment". * That the invoices were made for a lesser amount and the amount over and above the invoice value which is recorded as down payment in sheet no. 59 were made by the importer directly to the suppliers through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allel invoice as such, he could very well prove the higher transaction value of the Barasat consignment in question by reference to the statement of 'DOWN PAYMENT VS. INVOICES' issued by M/s. Jemasco Utama, copy of which is available in the afore-said bunch recovered from Kavya International during search, wherein the rates and amounts of actual transaction value and down-payment have been categorically mentioned, along with the amount of the balance to be remitted via bank. * As per Jemasco Utama's statement of 'DOWN PAYMENT VS. INVOICES', in Barasat case against Invoice No. 05-23-220 dated 13.03.08, the total Invoice value is USD 31595.00, the amount of down payment is USD 17395.00 and the amount of balance to be remitted through bank is USD 14200.00. This amount of USD 14200.00 only was reflected in the commercial invoice of the same No. and date to enable the importer to send remittance in foreign exchange through bank. * He used to forward to his concerned importers the statements of 'DOWN PAYMENT VS. INVOICES' received time to time from Jemasco Utama through Rakesh Parekh, with hand-endorsements thereupon about calculation, etc. wherever required, and after confirmation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies of contracts where the agreed price for supply of SPO grade Slack Wax of Indonesia origin (manufactured by Pertamina Oil Refinery) in ISO tank was USD 790 per M.T., the contract was entered at the price of USD 400 per M.T. (being M/s. M. K. Synergy's Contract Nos. MKS/37-01/08 for 40 M.T. , MKS/38- 01/08 for 40 M.T. and MKS/39-01/08 for 20 M.T. all dated 18.01.2008 with M/s. Kanpur Twine Manufacturing Company of Kanpur, M/s. Barasat Wax Refinery of Kolkata and M/s. National Industrial Corp. of Begusarai respectively). * The above price included the amount of commission to be paid to his firm as commission at the rate of USD 25 per M. T. in rupee equivalent in India. The remaining amount of USD 365 per M.T. (i.e. USD 790 -400 -25 = 365) was to be sent to the supplier as down payment against the contracted three consignments as above. * A remittance of USD 36368.00 by T.T. (Telegraphic Transfer) was confirmed as received from M/s. Barasat Wax Refiners under Receipt No. MKSR-013-01/08 dated 24 Jan.-08 of M/s. MK Synergy SDN. BHD, Malaysia, jointly against contracts for supply of 2FCL to M/s. Barasat wax, 1FCL to M/s. Kanpur Twine and 2FCL to M/s. National Industrial for the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tna Regional Unit of DRI with M/s. Vaishali Wax Products (IEC- 2102000630), Bairia, Muzaffarpur and in that course a statement dated 07.11.2012 of the proprietor Shri Raj Kumar Goenka was recorded under section 108 of the Customs Act, 1962, whereby Shri Goenka volunteered to pay the differential duty in the light of the evidences presented before him. The duty leviable on such amount of under valuation as reflected in the "DOWNPAYMENT VS. INVOICES' statement of M/s. Jemasco Utama thereon was reportedly deposited with interest by M/s. Vaishali Wax Products, Muzaffarpur subsequently. 21. Considering that the matter of imports by M/s. Barasat Wax Refiner was under investigation of DRI-KZU and that imports of Barasat Wax Refiner also included a high seas purchase of Slack Wax from M/s. Vaishali Wax Products, where similar under-invoicing was prima facie evident, enquiry was made with M/s. Vaishali Wax Products at Muzaffarpur in connection with, inter alia , their High Seas Sales transactions with Barasat Wax Refiner of Kolkata, as distinguished from their own importations. The Proprietor, Shri Raj Kumar Goenka appeared at the DRI office at Muzaffarpur and got his statement recorded b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a International in Delhi. * In 2007-08 he had supplied through Sandeep Gupta to his client (importers) in 6-7 cases of import of slack wax from Indonesia, where the importers were M/s. Barasat Wax Refiner of Kolkata, M/s. Vaishali Wax Products of Muzaffarpur, M/s. Techno Wax, Savo Polymers etc. * He (Rakesh Parekh) had forwarded the e-mails received from M/s. Thomas Bouhier, the sole owner of M/s. Jemasco Utama of Indonesia (email i.d. '[email protected]') through his e-mail account '[email protected]' to Shri Sandeep Gupta's e-mail account '[email protected]' for Shri Sandeep Gupta to make arrangements with the importers accordingly. * He tendered some print-outs of such communications between the foreign suppliers and himself and between himself and the local indentors like Sandeep Gupta and others through his e-mail account '[email protected]', duly authenticated by him under his dated signature of that date 21.01.2013. * He had also seen some papers and documents that were earlier presented before Shri Sandeep Gupta bearing his signature and he (Rakesh Parekh) also put his signature on them as token of having seen them and authenticating thereby a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoice for all was to be made by USD 400/MT and the balance of USD 352/MT CIF Haldia was to be paid in advance. Attached to the above e-mail was the previous e-mail from Rakesh Parekh to Shri Sandeep Gupta reading : 'below please find the new price for January' and followed below is the price list on e-mail dated 08.01.2008 sent by Mr. Thomas Bouhier of M/s. Jemasco Utama, Indonesia to Shri Rakesh Parekh indicating prices for DAO and SPO grades in CIF terms, obviously with slight variations for different destination ports of India. It was observed that at that time the cited prices of SPO grade were a little higher than the prices of DAO grade. For Haldia port, the prices cited were as below: Haldia Port: Drums: DAO at USD 737.--/ mt C.I.F. Haldia SPO at USD 752.--/ mt C.I.F. Haldia ISO tank DAO at USD 750.--/ mt C.I.F. Haldia SPO at USD 760.--/ mt C.I.F. Haldia * Another e-mail dated 10.01.2008 from Shri Sandeep Gupta to Shri Rakesh Parekh about their proposed joint visit to Indonesia and to arrange issuance of proforma invoices therefrom on suitable terms. * E-mail dated 12.03.08 from Shri Rakesh Parekh to Shri Sandeep Gupta requesting the latter to send bal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kh ) and that he (Sandeep Gupta) was prepared to pay his share of 50% of the profit to Shri Rakesh Parekh, when the shipments are done for the buyer. Vide the said e-mail, Shri Sandeep Gupta also asked Shri Rakesh Parekh to pay USD 493 as difference to Thomas and collect the cash from him (Sandeep Gupta) for the amount USD 493 X 41 = Rs. 20,213/- (Rs. 41 being the exchange rate applied per USD ). 24. The above communications appeared to reveal the manner in which the entire operation was carried out among the foreign supplier and the Indian indenters for different importers of their clientele. The figures above, as retrieved from e-mail account of Shri Rakesh Parekh, are in consonance with the figures reflected in the 'Down Payment Vs. Invoices' statement of Jemasco Utama recovered from the premises of M/s. Kavya International (Sandeep Gupta) at Delhi on 29.12.2011 as referred supra . In both the calculations, the amount received by Thomas Bouhier of Jemasco Utama in advance is USD 42500 from where deductions have been worked on the basis of amounts due from each of the importers over and above the invoice value with respect to the price agreed to arrive at the balance with the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prices also reveals that the prices ranged between USD 685 /MT (FOB UAE/Iran) and USD 805/MT during the corresponding period in 2010 and remained in the range of USD 810-885/MT in 2011. Thus Slack Wax prices were at no point of time less than USD 685/MT from July onwards during 2010 and USD 800/MT during 2011. In the light of such precise price intelligence data, it appeared that the price declared by several importers at various ports in India for import of Residue Wax at about USD 325/MT (CF) and Slack Wax at about USD 400/MT (CF) from 2008 onwards, was not correct. In this connection, it was observed that the price data published by M/s. Petrosil was also in line with the 'shipped price' mentioned in the Account statement of Moussighi and the price declared by M/s SPPPL. Taking all the above together under consideration, it transpired that the values declared by various importers, including M/s AI and M/s. SAI at Tuticorin port and M/s. Magna Dealers Pvt. Ltd. at Kolkata/Haldia Port did not represent the true and correct transaction value. 25.2 The price trend in the Petrosilicon data, as available for the aforesaid period, has also been analyzed for import prices of slack wax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rials (Iran/UAE origin Slack Wax and Residue Wax) at higher prices were found and displayed in ANNEXURE-B and ANNEXURE-B1 and import of the materials (Indonesia origin Slack Wax) at higher prices were found and displayed in ANNEXURE-DD1 of Show Cause Notice respectively. As regarding impact of quality of the materials on price, it was seen from the prices for different varieties cited in the few price-lists and accounts statement recovered as well as from the Customs valuation database that there existed some variations in prices pertinent to quality/oilcontent/ refinery of origin etc., but such variations were not huge. In the midst of these little variations an underlying generalized price range is always noticeable, around which such variations are seen to occur, which by no means are sharp where mineral oil/hydrocarbon oil content is in the usual range of 15-40% for Slack Wax and 40-70% for Residue Wax. Such generalized price range are also compiled and published by Petrosilicon. 28. On scrutiny of the documents and papers recovered from the premises of M/s. Kavya International at New Delhi and tendered by Shri Rakesh Parekh of Mumbai, both agents, involved in arranging impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll of Entry No. Date Supplier Brief Description Grade Price in USD INCOTERMS Net Qty. in M. INNSA1 761367 26.03.2008 Pertamin a (Persero) Slack Wax in ISO Tank Contr. SPO 620 CNF 28.88 INNSA1 844254 26.05.2008 Pertamin a (Persero) Slack Wax in ISO Tank Contr. LMO 840 CIF 73.74 INMAA1 754093 29.05.2008 Pertamin a Energy Services Pte. Ltd. (PES) Slack Wax in ISO Tank Contr. DAO 810 FOB 40.14 INMAA1 772221 20.06.2008 PES Slack Wax in ISO Tank Contr. DAO 810 FOB 20.50 INMAA1 773737 23.06.2008 PES Slack Wax in ISO Tank Contr. DAO 810 FOB 20.30 INMAA1 775346 24.06.2008 PES Slack Wax in ISO Tank Contr. DAO 810 FOB 20.00 It was observed that the price of USD 620 PMT (CF) for supply of SPO grade directly by the refinery around Feb.-Mar. 2008 was very much commensurate to the price of USD 732 PMT (CIF) charged by the trader supplier M/s. M K Synergy for supply of SPO grade to Vaishali Wax Products and Barasat Wax Refiner around Jan.-Feb. 2008. Similarly, the prices of USD 840 PMT (CIF) and USD 810 PMT (FOB) for supplies made by the Pertamina Group around May-June 2008 was very much commensurate to the price of USD 890 PMT (CIF) c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emasco Utama for the months of June 2008 and July 2008, the LMO Grade is shown uniformly dearer by USD 40 PMT CIF than the SPO Grade for both the months. In the e-mail communication dated 08 January 2008 from Thomas Bouhier of Jemasco Utama bearing price-list for the month of January 2008, SPO grade has been shown as costlier by upto 18 US dollars than even the DAO grade. Besides, from a quotation for all grades procured in January 2013 by an Indian importer M/s. Usha Lube Private Limited directly from M/s. Jemasco Utama PT., from whom M/s. Usha Lube have been importing DAO grade on a regular basis, the price quoted by M/s. Jemasco Utama for DAO and LMO grades is USD 1215 per M.T. C.I.F. Haldia/ Calcutta, while for SPO grade it is USD 1205 per M.T. C.I.F. Haldia/ Calcutta - the net difference between prices of DAO and LMO grades thus being nil and between the said two grades and SPO grade being a meager USD 10 PMT. M/s. Usha Lube had submitted the above details in the office of DRI-KZU under cover of their letter ref. UL/12-13 dated 10.01.2013 with request to dispense with provisional assessment of their consignments of Indonesian Slack Wax. 29. All the afore-cited materials appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and other suppliers, some of which have been cited in the foregoing sections. Taking all the above together under consideration, it appeared that the values declared by various importers, including M/s. Chowdhary Udyog at Kolkata port do not represent the true and correct transaction value, since they also declared values at par with the values of comparable products declared by M/s AI and M/s. It further appeared that the value, as declared for imports of Slack Wax and Residue Wax of Iran/UAE origin and Slack Wax of Indonesia origin by M/s. Chowdhary Udyog of Kolkata, as at par with the aforesaid lower price range followed by several importers for purposes of declaration of value for subject materials, may not be reflecting the actual transaction value in terms of section 14(1) of the Customs Act and the same, for the reasons detailed above appeared liable to rejection under rule 12 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 (hereinafter referred to as CVR'07 for the sake of brevity). 30. RE-DETERMINATION OF VALUE UNDER CVR'07. 30.1 As the declared values for Slack Wax of Iran/UAE/Indonesia origin and Residue Wax of Iran/UAE origin imported b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transaction value. For the self-same reasons, the value of subject goods cannot be determined under provisions of Rule 5 of CVR'07, with sub-rule (3) of rule 4 being applicable mutatis mutandis in respect of similar goods covered under rule 5. 30.3 In terms of rule 6, therefore, the value has to be determined either under rule 7 or under rule 8 of CVR'07. Rule 7 requires that if the goods being valued or identical or similar imported goods are sold in India, in the condition as imported at or about the time at which the declaration for determination of value is presented, the value of imported goods shall be based on the unit price at which the imported goods or identical or similar imported goods are sold in the greatest aggregate quantity. No such sale of the imported goods in comparative quantities is noticed in open market, the product primarily finding use as raw-material in Paraffin Wax manufacturing industry. During investigation it also came to light that many of such manufacturing units are themselves importers. In case of shortage of the material with one manufacturing unit, they purchase from stocks with other manufacturing units or traders, who also have imported the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 under the facts and circumstances of instant case is an inter-mix of what are enumerated below: (i) recoveries of incriminating evidences like higher evidences of value made on wide-spread searches conducted at various locations as afore-said or submitted/tendered under section 108 of the Customs Act 1962 by several persons interrogated; (ii) analyses of data about prevalent prices of different varieties of Waxes imported from different countries of supply published by 'Petrosilicon', which gives a near perfect picture of prevalent prices in F.O.B. terms for supply of several petroleum based products with generic description, including Slack Wax and Residue Wax, to India; (iii) evidences of higher value in the Customs import data base of actual imports made into India at such declared prices, provided prevalence of such higher value in the international market is corroborated by (i) and/or (ii) above or provided there are other reasons if any specifically cited for reliance on such higher evidence of value. 30.5 Seeing the afore-cited recoveries vis-à-vis the analyses of 'Petrosilicon' data (subject to the period of its availability, as discussed supra ) and the ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s statement of Massoud Moussighi, the transacted price of Slack Wax supplied vide Invoice A1815 and cleared vide Bill of Entry No. 473843 25.11.2009 from Tuticorin port (ref. para 3.2.17 of appeared to be USD 700 PMT C&F, which is since lower than prevalent price proposed to be determined for the preceding period. January12, 2010 to June 22, 2010 Euro 291 715 As per the recovered accounts statement of Massoud Moussighi, the transacted price of Slack Wax, supplied vide Invoice A1830, and cleared vide bill of entry Nos. 477286 12.01.2010 from Tuticorin port (ref. para 3.2.17 of appeared to be USD 715 PMT C&F, which signifies a slight the then prevalent price. June 23, 2010 to July 11, 2011 Euro 324.88 to USD 400 730 As per the Customs Import data-base, M/s. SPPPL filed Bills of Entry in June 2010, viz. B/E No. 272322 23.06.2010, 272641 dated 29.06.2010 and 272642 29.06.2010 at Unit Price of USD 740, USD 750 and USD respectively against Invoice Nos. RL-SPP/1/1389 dated 09.06.10 of M/s. Remel International F.Z.E and A1921 and A1922 dated 05.06.10 of M/s. GFEC (ref. para 3.2.14 of SCN). The of the three prices of above-referred genuine transactions proposed to be relied upon for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi and recovered from e-mail account of Shri Purba during investigation at DRI-TTN, the actual transaction value of Residue Wax of subject consignment was USD 520 C&F. The said Proforma Invoice is found to correspond Commercial invoice no. A1809 dated 22.09.2009, on the which B/E No. 471613 dated 21.10.2009 was filed by M/TTN-port (ref. para 3.2.7/8 of SCN) and, which signifies drop in price during the period. April 6, 2010 to April 3, 2011 350 535 As per another Proforma Invoice (No. 10242010 24.01.2010) of M/s. GFEC sent in e-mail by Mr. Massoud Moussighi, recovered from e-mail account of Shri Ramdev the actual transaction value of Residue Wax of consignment was USD 535 PMT C&F. The said Proforma is found to correspond to Commercial Invoice no. A1895 18.03.2010, on the basis of which B/E No. 483183 06.04.2010 was filed by M/s. AI at TTN-port (ref. para of SCN) and, hence, may be relied upon to revise the proposed price for determination. April 4, 2011 to August 16, 2011 No B/E 710 As per the recovered accounts statement of Massoud Moussighi, the transacted price of residue Wax, supplied vide Invoice A1997, and imported under Bill of Entry No. 3116405 04.04.2011 from Tutic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing among others a confirmation of receipt of money by the foreign supplier, the transaction value of Indonesian slack wax supplied by M/s. M K Synergy SDN BHD during the period under contract Nos. MKS/31-12/07 and MKS/32-12/07 to M/s. Vaishali Wax Products of Muzzaffarpur and M/s. Barasat Wax Refiner of Kolkata appeared to be USD 732 per MT (CIF). The said consignments were covered under bill of entry nos. 389395 dated 28.01.2008 and 393452 dated 19.02.2008, filed by the concerned importer prima-facie suppressing the above transaction value and mis-declaring the same at around the usual USD 400 PMT CIF (USD 420 to be exact), in line with what was rampantly done during the period and thereafter by several importers across the country. [ref. para 7.3 of SCN] (ii) For prospective supplies of the product in successive months, even a higher price was demanded by the said supplier. [ref. para 4.2.1/viii of SCN] April 2008 to May 2008 590 890 (i) As per the series of incriminating evidences, including recoveries from the Delhi-based agent M/s. Kavya International's premises comprising among others the statement of 'DOWN PAYMENT VS. INVOICES' of the foreign supplier M/s. Jemasco Uta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available in the customs import valuation databse. (ii) The importer in instant case, M/s. Chowdhary Udyog, themselves imported one consignment of DAO grade Slack Wax directly from overseas supplier M/s. Niku Exim International at CIF price of USD 840 per M.T. under bill of entry No. 513299 dated 23.12.09 [ref. para 5.1.vii, para 8.5.3.vi & data in ANNEXURE-DD1 of SCN]. September 2010 to December 2010 No B/E 823 (i) As pointed out above, the tendency of prices spilling over USD 800 PMT (CIF) was already noticeable in the preceding period, it appears to have settled about USD 825 PMT CIF as evidences of prices pre-dominantly in the range of USD 823 to a little above USD 900 PMT (CIF) are available in the customs import valuation databse. (ii) The 'Petrosilicon' data available from June 2010 onwards corroborate to prevalence of the afore-said price range in CIF for import of Indonesia origin slack wax in India. January 2011 to April 2011 425 900 (i) The prices appear to have settled about USD 900 PMT CIF as evidences of high prices pre-dominantly in the range of USD 900 to 920 PMT (CIF) are noticed in the customs import valuation databse. (ii) The 'Petrosilicon' data for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e active partner of the company/firm Shri Pawan Kumar Chowdhary in relation to the import by these companies/firms pertaining to the Bills of Entry that were assessed against P.D. Test Bonds prior to 17.02.2012. The importer M/s. Chowdhary Udyog inter-alia challenged such finalization of the P.D.Test Bonds by filing a Writ Petition [W.P. No. 224 of 2014] in the Hon'ble High Court, Calcutta. Two other importers namely, M/s. Magna Dealers Pvt. Ltd. and M/s. Deepjyoti Wax Traders Pvt. Ltd. filed similar writ petitions, being W.P. No. 226 of 2014 and W.P. No. 229 of 2014 respectively against the Show Cause-Cum-Demand notices issued to them. 32. Vide order dated 12.08.2014 Single Judge disposed of the writ application (W.P. No. 224 of 2014) inter alia with observation that assuming that provisionally assessed goods are required to be finally assessed under section 18 of the Customs Act, 1962 but that provision assumes that there is no complaint regarding the goods or the importer; that it had been pointed out that there was an allegation of misdeclaration regarding the value of the goods; that in such a case the department was empowered to issue a show cause notice under section 124 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om (Port) & Ors.], it was inter alia observed that it appeared that based on the pleadings, the learned single Judge came to the conclusion that although for all practical purposes the final assessment had been made of the goods but such final assessment was taken to be 'deemed' ; that there was no final order of assessment and, therefore, the department was enjoined to pass formal order of assessment; that the facts of the case are the PD Bonds were cancelled as discharged on demand, final assessment made pursuant to the provisional assessment made earlier; that, however, subsequently, discovery was made on investigation by the DRI which resulted in issuance of show cause -cum- demand notice under section 124 read with section 28 of the Customs Act, 1962 dated 25th June 2013 which was impugned in the writ petition; that the challenge of the petitioner was that the said show cause notice could not have been issued when no final order of assessment had been made under Section 18 of the said Act. The Division Bench inter alia observed further that the appellant had filed a supplementary affidavit annexing a copy of order dated 15th September, 2014 said to be the final order of assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .09.2014 could have been taken for the aforesaid reason that the said orders had been challenged by way of filing supplementary affidavits as per leave granted by the Division Bench and the matter thus being subjudice. Any calculation of the permissible period for raising a demand under section 28 of the Customs Act, 1962 against such order of final assessment, therefore, has to be done from 10.11.2014 as the relevant date, the date when the Division Bench passed the Appeal Order inter alia putting it on record that the importer accepted the final order of assessment dated 15.09.2014 and granted liberty to the parties to take such steps in consequence of the order they feel necessary, in accordance with law. 36. The aforesaid Final Order of Assessment bearing F. No. S202-Gr.I(P)- 21/2011A Pt.I dated 15.09.2014 passed by the Deputy Commissioner of Customs, Appraising Group-I, Custom House, Kolkata against certain provisionally assessed Bills of Entry of M/s Chowdhary Udyog has the effect of finalization of provisional assessment in respect 5 (five) Bills of Entry (Bs/E) of Slack Wax of Iran/UAE origin and 1(one) B/E of Residue Wax of Iran/UAE origin and 6(six) Bills of Entry (Bs/E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onds stand cancelled. 38. As regards their imports of subject commodities, it was observed that the importer, M/s. Chowdhary Udyog, while indulging in wilful mis-statement of value of the imported goods by suppression of their actual value in the manners elucidated supra , had on the other hand subscribed to the truthfulness of declarations made in Bills of Entry filed with Customs in terms of section 46. From the importer's side all aspects pertaining to determination of duty were full and final, besides being complete in terms of the declarations made by them vide section 46. They had nothing different to declare thereafter, and, only test report confirming the declared nature and composition of the imported goods was awaited to finalize the provisional assessments with all the terms of the assessment, including valuation, remaining intact. Even after amendment in the Customs Act introducing selfassessment w.e.f. 08.04.2011, the importers had not brought on record any want of material facts restraining them from making any final declaration of value. Provisional assessment for 'valuation' of the goods in terms of section 18(1)(a) as amended had, therefore, been out of question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled vide the said Final Orders of Assessment dated 15.09.2014. 40. As per Section 111(m) of the Customs Act, 1962, all the goods which do not correspond in respect of value or in any other particular with the entry so filed (under section 46) are liable for confiscation. As this appeared to be a case of mis-declaration of value, the subject imported goods appeared liable to confiscation under the afore-said section 111(m) and the act on the part of the importer appeared to fall under the category of smuggling (as defined at sub-section 39 of section 2 of the Customs Act, 1962). Thus M/s. Chowdhary Udyog and its partner Shri Pawan Kumar Chowdhary, who admittedly had been handling imports of Slack Wax and Residue Wax for the company and, therefore, who appeared to have been controlling the entire conspiracy and the acts of wilful mis-statement of value and suppression of actual value of the goods imported by submission of untrue and fabricated Invoices and by adopting other illegal means to give effect to the conspiracy for ultimate evasion of duty, besides indulging in acts and/or omissions rendering the imported goods liable for confiscation under section 111, appeared to have c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evied amount of duty as afore-said; V. For such wilful misdeclaration of value of subject imported goods and wilful suppression of the actual transaction value, apparently resorted to in collusion with the suppliers and/or their agents and/or high seas sellers, and thereby, causing short-levy of duty as afore-said, penalty should not be imposed on them as the importer under section 114A of the Customs Act, 1962; DEFENCE OF THE NOTICEES 43. The noticee submitted their reply to the Show Cause Notice vide letter dated 09.10.2017 and an application received on 11.10.2017. The brief of submission is stated as below- 43.1 They have submitted that in view of final order of Division Bench, High Court, Kolkata, matter is settled once for all and thereafter, the matter which was then pending before the Hon'ble Division Bench was taken up by the Appellate Court and the Appeal Court quashed the show cause notice upon taking into consideration the fact that the order under section 18(2) of the Customs Act had been passed and in view thereof the show cause notice was not tenable. In the Order passed by the Hon'ble Division Bench, their statements were also recorded to the effect that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd filed bills of entry for home consumption for provisional assessment under Section 18(1) of the Customs Act 1962. The bills of entry were provisionally assessed to verify declarations of import as to value and oil contents of slack wax and residue wax. Value of the slack wax and residue wax depend upon oil contents. If percentage of oil in slack wax and residue wax is higher valuation of slack wax and residue wax would be lesser. Slack wax has percentage of oil between 30% to 60% and residue wa has percentage of oil between 60% to 80%. The goods were sent for chemical test to verify declaration. At the time of imports the respective appellant filed for each of the consignments chemical test report sent by the exporter alonwith the bill of entry. At the time of provisional assessment the bonds and bank guarantees were taken and the bills of entries were provisionally assessed and released. The price declared by the appellant were at par with the value of imports at various Port in India. The final assessment of the bills of entries under Section 18 (2) of Customs Act, 1962 were not done and kept pending but in the meantime a show cause notice was issued in the year 2013 under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spective appellant on the self same materials as raised in the first show cause notice.In the show cause notice it was admitted that there were several contemporaneous imports of identical and similar imports at various Ports at the same or near same value. It was also admitted in the show cause notice that there is no available instance under Rule 4, Rule 5, Rule 6, Rule 7 and Rule 8 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 (Valuation Rules)to challenge and/or reject the transaction value declared by the appellant. In the show cause notice resort was taken to Rule 9 without comparable imports. Few instances of stray imports and statement of Account seized from Mr. Ramdeo Purba of M/s. Abhisekh India was made basis to reject the transaction value without any comparability of the goods being examined for the second time. The appellants contested the proceeding. They sought cross examination of Mr. Ramdeo Purba and others. The first adjudicating authority allowed cross examination of Mr. Ramdeo Purba and Sri A. Ramaswamy, Sri M. Raj, Sri G. Swaminathan and Uday Prakash Guptain view of the submissions made by the appellant that relied upon photocopie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , all the allegations were in the knowledge of the department on the basis of which the re-assessment were done Therefore extended period of limitation would not be applicableThe appellant submits that the second show cause notice was issued to Shri Hari Wax O-Chem Pvt. Ltd. on 7th October 2016 in respect of 25 bills of entry after a period of 2 years and 22 days of reassessment order and in respect of 4 bills of entry the delay of one year and 11 months 23 days from the date of re-assessment order under Section 18 (2) of the Customs Act 1962. In case of Shiva Chemical Industries the show cause notice is issued after 2 years 22 days from the re-assessment order in respect of 15 Bills of Entry and in respect of one bill of entry it is one year and 11 months. In case of Deep Jyoti Wax the show cause notice is issued after one year and one month and 22 days from the date of re-assessment order and in case of Chowdhury Udyog the second show cause notice was issued after one year one month and 25 days after the reassessment order. The appellant submits that the show cause notice were barred by limitation as extended period were not applicable inasmuch as all the allegations and charges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding if any document is to be admitted and relied upon, inspection has to be given and denial of inspection would be on breach of natural justice and non-availability of the originals would make the documents inadmissible. The appellant further submitted that it has filed compilation of datas of identical imports at various ports which were in plenty and such instances were not disputed in the adjudication proceeding. The appellant had shown several imports of identical or similar goods at near or same price at various ports such as Delhi TKB, Cochin, Kandla, Madras, Tuticorin ICD and these datas were in abundance. The adjudicating authority has not disputed the details of data given by the appellant as contemporaneous import of identical and similar goods. Rather this fact has been admitted. The appellant submits that under the Valuation Rules lowest valuation is required to be taken. The appellant submits that the transaction value can only be disputed on the basis of contemporaneous import of higher value and if such material is not available in that case the transaction value cannot be rejected. The Hon'ble Supreme Court in the recent two judgements in the case of Sanjivani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of Rule 9 provides that it can be used for the purpose of giving a reasonable flexibility to identical goods or similar goods if available in which the time and quantity parameters do not match. The Rule 9 is made applicable for giving a reasonable flexibility. In the adjudication order the adjudicating authority refused to accept the valuation available under Rule 4 (3) by alleging wild allegation of mass under invoicing and cartel. There is no reason given for adopting the value mentioned in Table 3 and Table 4 of the adjudication order and on comparability of the goods. The transaction value was wrongfully rejected and loaded on the basis of Table -3 and Table - 4 without examining comparability of the goods . Such stray instances cannot be used to challenge the declared value. There is no case that any remittance clandestinely was madeand/or mutuality of interest were there. The burden to prove does not stand discharged. The appellant relied upon the judgement of the Tribunal in case of Gupta Export -Vs- Commissioner of Customs reported in 2002(146) ELT Page 361 (Tri Chennai). The appellant also relies upon the judgement of the Tribunal in case of Sheel Chand Industrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any subsequent resale, disposal or use of the goods by the buyer will accrue directly or indirectly to the seller, unless an appropriate adjustment can be made in accordance with the provisions of rule 10 of these rules; and (d) the buyer and seller are not related, or where the buyer and seller are related, that transaction value is acceptable for customs purposes under the provisions of sub-rule (3) below. (3) (a) Where the buyer and seller are related, the transaction value shall be accepted provided that the examination of the circumstances of the sale of the imported goods indicate that the relationship did not influence the price. (b) In a sale between related persons, the transaction value shall be accepted, whenever the importer demonstrates that the declared value of the goods being valued, closely approximates to one of the following values ascertained at or about the same time. (i) the transaction value of identical goods, or of similar goods, in sales to unrelated buyers in India; (ii) the deductive value for identical goods or similar goods; (iii) the computed value for identical goods or similar goods : Provided that in applying the values used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for export to India and imported at or about the same time as the goods being valued : Provided that such transaction value shall not be the value of the goods provisionally assessed under section 18 of the Customs Act, 1962. (2) The provisions of clauses (b) and (c) of sub-rule (1), sub-rule (2) and sub-rule (3), of rule 4 shall, mutatis mutandis, also apply in respect of similar goods. RULE 6. Determination of value where value can not be determined under rules 3, 4 and 5, - If the value of imported goods cannot be determined under the provisions of rules 3, 4 and 5, the value shall be determined under the provisions of rule 7 or, when the value cannot be determined under that rule, under rule 8 : Provided that at the request of the importer, and with the approval of the proper officer, the order of application of rules 7 and 8 shall be reversed. RULE 7. Deductive value. - (1) Subject to the provisions of rule 3, if the goods being valued or identical or similar imported goods are sold in India, in the condition as imported at or about the time at which the declaration for determination of value is presented, the value of imported goods shall be based on the unit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tent with the principles and general provisions of these rules and on the basis of data available in India : Provided that the value so determined shall not exceed the price at which such or like goods are ordinarily sold or offered for sale for delivery at the time and place of importation in .the course of international trade, when the seller or buyer has no interest in the business of other and price is the sole consideration for the sale or offer for sale. (2) No value shall be determined under the provisions of this rule on the basis of :- (i) the selling price in India of the goods produced in India; (ii) a system which provides for the acceptance for customs purposes of the highest of the two alternative values; (iii) the price of the goods on the domestic market of the country of exportation; (iv) the cost of production other than computed values which have been determined for identical or similar goods in accordance with the provisions of rule 8; (v) the price of the goods for the export to a country other than India; (vi) minimum customs values; or (vii) arbitrary or fictitious values. The appellant submits that in view of the judgement of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed finality. It cannot be agitated again and again. If that is allowed, there will not be any end to the number of proceedings. Today the investigation has revealed that 'A' is the importer. After a few months investigations may reveal the importer to be some 'B'. Are we going to allow another proceedings in the light of new facts ? There should be finality to litigation. No doubt, when the investigation is not proper, the cause of justice suffers. That is no reason to have multiplicity of proceedings, which is against the public policy. The case laws cited by the learned Senior Advocate are squarely applicable to the present case. The case laws cited by the learned DR are distinguishable. Under these circumstances, we set aside the impugned order and allow the appeals with consequential relief. The Hon'ble Supreme Court in the case of Union of India vs. Food Speciality Limited report in 97 ECT page 402 (SC), held : Shri Vellapally, learned senior Counsel for the respondent assessee states that this appeal arises out of a consequential order made pursuant to the decision reported in Dalmia Industries Limited vs. Collector of Central Excise - 1992 (61) CLT 295 pertaining to cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of proviso to Section 11A of the Central Excise Act and take benefit of the extended period of limitation, From the facts noted above, it becomes clear that the Department had issued Show Cause Notice way back on 18- 2-1994 asking the appellant to reclassify the goods under Chapter Heading 3920. Therefore, all relevant facts were within the knowledge/notice of the Department. Not only this, after the appellant had filed the reply to the said Show Cause Notice and was heard in the matter, the proposed move in the said Show Cause Notice was even dropped. Therefore, under the aforesaid circumstances, by no stretch of imagination, the appellant can be treated as a person who had misled the authorities or made any misstatement/misdeclaration. The appeal is allowed on this ground itself without going into the issue of classification setting aside the impugned order. As a result, the impugned orders passed by the authorities below are set aside. In case of Nizam Sugar -Vs- Collector of Central Excise, UP (197 ELT Page 465 (SC) it was held - Without going into the question regarding Classification and marketability andleaving same open we intend to dispose of the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved ; "4. In the case of M/s. P&B Pharmaceutical (P) Ltd. v. Collector of Centra! Excise reported in [2003 (2) SCALE 390], the question was whether the extended period of limitation could be invoked where the Department has earlier issued show cause notices in respect of the same subject-matter. It has been held that in such circumstances, it could not be said that there was any wilful suppression or mis-statement and that therefore, the extended period under Section 11A could not be invoked." Similarly, this judgment was again followed in the case of Hyderabad Polymers (P) Ltd. v. Commissioner of Central Excise, Hyderabad reported in (2004 166) JLL.L._151 (S.C.)]. It was observed in para 6 : "......... On the ratio laid down in this judgment it must be held that once the earlier Show Cause Notice, on similar issue has been dropped, it can no longer be said that there Is any suppression. The extended period of limitation would thus not be available. We are unable to accept the submission that earlier Show Cause Notice was for a subsequent period and/or it cannot be taken into consideration as it is not known when that Show Cause Notice was dropped, If the Department wanted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss examination was denied and the denial of cross examination was also in breach of the principle of natural justice. The documents which were not available for inspection could not have been used in the adjudication proceeding. The submission of the appellant in rejoinder is that several consignments of identical and similar goods were imported at various ports near and the same price which facts are admitted in the show cause notice and in the adjudication order also. The appellants have cited several instances of contemporaneous import at various ports such as Delhi,TKB, Cochin, Madras, Tuticorin which fact has not been disputed by the adjudicating authority. On the contrary the adjudicating authority admits such contemporaneous import at a lower value but does not accept the same by holding that there was an intelligence that goods were under invoiced. By such intelligence Valuation Rules cannot be discarded. The valuation can only be disputed on the basis of contemporaneous import of higher value and if there is no such material available in that case transaction value cannot be rejected. The Hon'ble Supreme Court in the case of Commissioner of Central Excise, Noida -Vs- S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of imported goods. There are no rules governing the valuation of export goods. That must be done based on Section 14 itself. In the present case, the Department has charged the respondent importer alleging misdeclaration regarding the price. There is no allegation of misdeclaration in the context of the description of the goods. In the present case, the allegation is of underinvoicing. The charge of underinvoicing has to be supported by evidence of prices of contemporaneous imports of like goods. It is for the Department to prove that the apparent is not the real. Under Section 2(41) of the Customs Act, the word "value" is defined in relation to any goods to mean the value determined in accordance with the provisions of Section 14(1). The value to be declared in the bill of entry is the value referred to above and not merely the invoice price. xxx xx xxx 12. However, before rejecting the invoice price the Department has to give cogent reasons for such rejection. This is because the invoice price forms the basis of the transaction value. Therefore, before rejecting the transaction value as incorrect or unacceptable, the Department has to find out whether there ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent are to be appreciated in the light of the principles of law specified in the aforesaid judgment, inasmuch as the Tribunal has. categorically remarked that the normal rule is that assessable value has to be arrived at on the basis of the price which is actually paid, as provided by Section 14 of the Customs Act and the case law referred to by it (In paragraph 5, the Tribunal referred to its own judgments which follow the aforesaid principle laid down by this Court). In the case of Century Metal Recycling -Vs-Union of India reported in 367 ELT page 3(SC) the Hon'ble Supreme Court held - Interestingly, the order in original also records that the imported foods being aluminium scrap was not a homogeneous commodity and therefore, cannot be evaluated on the 1 basis of the samples or lab testing. Further, the order holds that it was very difficult to find any identical/similar goods imported in India having same chemical and physical Composition and that the values of aluminium scrap identifical /similar to the imported goods in nature and specification were not available. Without commenting on correctness of the said statements, we would observe that the aforesaid reasoning for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tity. No such sale of the imported goods in comparative quantities is noticed in open market, the product primarily finding use as raw-material in paraffin wax manufacturing industry.... ...... Value of subject imported goods, therefore, cannot be determined under rule 7, and for that matter under rule 7(3), ibid. Data in respect of cost or value of materials and fabrication or other processing employed in producing the imported material in question in Iran and UAE is neither available nor have been provided, by or on behalf of the importer, and, therefore, value of the imported goods cannot be determined under rule 8 ibid either". Adjudication order (Para 37.1) "Next important issue after rejection of declared value as transaction value is re-determination of the value. In terms of Rule 3 (4) of the CVR'07, the value has to be determined by proceeding sequentially through rule 4 to 9, Rule 4 of the CVR'07 provides for determination of the transaction value on the basis of identical goods sold for export to India and imported at or about the same time as the goods being valued. However, in instant case, I find that this is a case where importers formed a sort of cartelizat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilable nor have provided, by or on behalf of the importer, and, therefore, value of the imported goods cannot be determined under rule 8 ibid either". In view of the judgement of the Hon'ble Supreme Court in case of Century Metal Recycle Pvt. Ltd., the rejection of transaction value declared by the importer was improper and value could not be loaded by applying Rule 9 by taking recourse to stray evidence without any comparability. Only few stray evidences were relied upon without comparability of the goods. In the case of Basant Industries -Vs- Additional Collector of Customs reported in 81 ELT page 195 (SC); the court held : 4. It will, thus, be seen that the price of US $ 1.80 each for 40,000 pieces was fixed after considerable negotiations and was fixed after keeping in view that the importers were old and valued customers. It is not known whether the other Importer, namely, M/s. Ravi Agricultural Industries had the same relationship. There is also no reason why the instance pointed out by the importer that the very same commodity had been supplied by another supplier at the same price of US $ 1.80 GIF per piece should have been totally ignored and Instead the stray insta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken in the aforesaid judgments and respectfully following the same, hold that there was no suppression of facts on the part of the assessment/appellant. There is no comparability of goods in the case in hand to reject the transaction value. In the adjudication order the fact that there was no comparable quantity and quality available and there is no discussion on value of the goods mentioned in Table 3 and Table 4. Without any discussion value proposed in the Table 3 and Table 4 is taken. Paragraph 37.4 of the adjudication order is set out herein below : "I also take into account the fact that over such a long period of time international oil prices cannot remain static. Taking into account above mentioned fact, I agree with the re-determined value of imported slack wax and residue wax as proposed by the investigation reflected in Table- 3 and Table-4 above and accordingly arrive at re-determined value of the imported slack wax and residue wax as reflected in Table-5 above". There is no reason given for adopting the value mentioned in Table 3 and Table 4. Therefore, the loading of value by the impugned order is liable to be set aside. Stray evidence instances canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under-Invoicing has to be supported by evidence of prices of contemporaneous imports of like goods. Section 14(1) speaks of "deemed value" Therefore, invoice price can be disputed, However, it is for the Department to prove that the invoice price is incorrect. When there is no evidence of contemporaneous imports at a higher price, the invoice price is liable to be accepted. The value in the export declaration may be relied upon for ascertainment of the assessable value under the Customs Valuation Rules and not for determining the price at which goods are ordinarily sold at the time and place of importation. This is where the conceptual difference between value and price comes into discussion. Inasmuch as no case of contemporaneous import of higher value has been shown the rejection of transaction value would not be tenable. There is no case of any clandestine remittance. In the case of case of Chand Industries -Vs- Commissioner of Customs, New Delhi reported in 274 ELT page 579 (7 RIB) it was held that there needs to evidence on record to show that importer had paid any consideration over and above value declared by the importer to the supplier. There is no allegation of any c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 2012: M/s Chowdhary Udyog imported slack wax and residue wax and filed 18 Bill of Entry under Section 18 of the Customs Act, 1962.The Bills of Entry filed by the aforesaid importers were provisionally assessed and samples were taken for chemical test to ascertain percentage of oil in the slack wax and residue wax as declared by the appellant. The goods were provisionally released on bonds, Bank Guarantees and securities. 31.05.2013 A combined show cause notice was issued to the Shri Hari Wax-O-Chem Pvt Ltd, Deep Jyoti Wax Traders Pvt. Ltd., Shiv Chemical Industries, Amit Kumar Agarwal alleging that there was a short levy in assessment of duty of the Bills of Entry on the basis of allegations made in the show cause notice and on 25th June 2013 a similar show cause notice was issued to Chowdhary Udyog, Pawan Kumar Chowdhary on the self same allegations mentioned above. 01.04.2014 Shri Hari Wax-O-Chem Pvt. Ltd., Shiv Chemical Industries, Deep Jyoti Wax Traders Pvt. Ltd. and Chowdhary Udyog challenged the proceedings under the show cause notice on the ground that since the Bills of Entry were provisionally assessed and final assessments were yet to be made the show cause noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur Bills of Entry filed by Shri Hari Wax-O-Cam Pvt. Ltd. were finally assessed under Section 18(2) of the Customs Act confirming the provisional assessment order. One Bill of Entry bearing no. 428968 dated 29th August, 2008 filed by Shiv Chemical Industries was finally assessed under Section 18(2) of the Customs Act confirming the provisional assessment order. 07.10.2016 The second show cause notice was issued to Shri Hari Wax-O-Cam Pvt. Ltd. and Shiv Chemical Industries on the self same allegations and cause of action covering the same Bills of Entry alleging short levy in respect the same Bills of Entry which were finally assessed after the issue of first show cause notice dated 31st May, 2013. 15.11.2016: All the parties filed their respective reply to the show cause notice raising objection on issue of a second show cause notice on the same cause of action which were alleged in the show cause notice dated 31st May 2013 / 25th June 2013 which were in verbatim same and that the show cause notice having been quashed in view of the final assessment made after the show cause notice on the self same facts issue of second show cause notice was barred by principle of resjudicata a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal. 03.05.2018: The Tribunal allowed all the appeals and set aside the respective orders of the adjudicating authority. 12.04.2019: The Hon'ble Supreme Court of India remanded the matter for de novo consideration. 7. We would also like to reproduce the various provisions of the Customs Act, which are relevant for the purpose of determination of the issue along with the Customs Valuation (Determination of the Price of Imported Goods), Rules, 2007. Section 14 of Customs Act. "Section 14 : Valuation of Goods. (1) For the purposes of the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force, the value of the imported goods and export goods shall be the transaction value of such goods, that is to say, the price actually paid or payable for the goods when sold for export to India for delivery at the time and place of importation, or as the case may be, for export from India for delivery at the time and place of exportation, where the buyer and seller of the goods are not related and price is the sole consideration for the sale subject to such other conditions as may be specified in the rules made in this behalf : Provided that such transaction v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means the value determined in accordance with rule 7. (c) "goods of the same class or kind", means imported goods that are within a group or range of imported goods produced by a particular industry or industrial sector and includes identical goods or similar goods; (d) "identical goods" means imported goods - (i) which are same in all respects, including physical characteristics, quality and reputation as the goods being valued except for minor differences in appearance that do not affect the value of the goods; (ii) produced in the country in which the goods being valued were produced; and (iii) produced by the same person who produced the goods, or where no such goods are available, goods produced by a different person, but shall not include imported goods where engineering, development work, art work, design work, plan or sketch undertaken in India were completed directly or indirectly by the buyer on these imported goods free of charge or at a reduced cost for use in connection with the production and sale for export of these imported goods; (e) "produced" includes grown, manufactured and mined (f) "similar goods" means imported goods - (i) which although not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms duty in the provisional assessments on the basis of allegation made in the show cause notice. Similar show cause notices were issued to M/s Chowdhury Udyog and its Director Shri Pawan Kumar Chowdhary on the very same facts and the ground on 25 June, 2013. These show cause notices were challenged before the Hon'ble High Court of Kolkata which stayed the proceeding under the show cause notice, by its order dated 1 April, 2014 which was finally disposed of on 12.8.2014 by Hon'ble Justice Shri I.P. Mukherjee, who directed the Department to complete the final assessment first and then to adjudicate upon the show cause notice. This order of Hon''ble Single judge was appealed against by the appellants before the Division Bench. The Division Bench quashed the show cause notice dated 25.6.2013 and 31.5.2013 with liberty to the department to take legal recourse as consequence of the order as it felt necessary, in accordance with law. 9. During the intervening period of order of Hon'ble Single judge and Division Bench of Hon'ble High court of Kolkata, the Department finalized the provisional assessments and released the provisional duty and test bond, after their cancellation, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. From the above narration, it is, thus, clear that the adjudicating authority has not permitted the cross examination of witnesses and also did not ask to permit the inspection of original or even photo copy of the document relied upon by the department. The reasons given by the adjudicating authority for not permitting the cross examination of the prosecution witnesses was that this will not lead to any conclusion of the case, is in complete disregard to the provisions of Section 138B of the Customs Act. The provisions of Section 138 B of the Customs Act will deals with relevancy of statements under the certain circumstances is reproduced herein under : "138B. Relevancy of statements under certain circumstances.- (1) A statement made and signed by a person before any gazetted officer of customs during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains,- (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of some of the Dubai based manufacturers at Tuticorin port. The seized print out e.mail were downloaded for the computer of these two firms which indicated that the invoices which were produced to the Customs were of the lower value when compared to those one which were available in the computer printout and e-mail and email. The extracted e-mail showed the price as under: TABLE-2 Sl.No. Bill of Entry & Date Description Qty. (MT) Price (USD/ MT) (CF) Supplier 1 272322 23.06.2010 Slack Wax 13.18 740 Remel International, UAE 2 272641 29.06.2010 Light Slack Wax 17.15 750 Global Future Expander Corp.(GFEC) 3 272642 29.06.2010 Heavy Slack Wax 33.79 730 4 3192733 04.12.2011 Abadan Slack Wax 17.41 920 Harmony Impex FZE Iranol Slack Wax 35.03 950 5 4778991 28.09.2011 Residue Wax 17.02 870 Abadan heavy Slack Wax 17.02 1020 Iranol light Slack Wax 34.044 1040 16. During investigation, the statement of Shri Ramdeo Purba was recorded on 13.2.2013 and 20.2.2013 wherein he admitted that in trade he is known by various names such as Ramdeo Purba, and used to arrange the import in waxes through Iran/UAE.. However, the invoicing were done in the name of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time being in force, - (a) a micro film of a document or the reproduction of the image or images embodied in such micro film (whether enlarged or not); or (b) a facsimile copy of a document; or (c) a statement contained in a document and included in a printed material produced by a computer (hereinafter referred to as a "computer printout"), if the conditions mentioned in sub-section (2) and the other provisions contained in this Section are satisfied in relation to the statement and the computer in question, shall be deemed to be also a document for the purposes of this Act and the rules made thereunder and shall be admissible in any proceedings thereunder, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in sub-section (1) in respect of a computer printout shall be the following, namely :- (a) the computer printout containing the statement was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section, - (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; (c) a document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation. - For the purposes of this Section, - (a) "computer" means any d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the electronic devices as evidence for authenticity of the documents, which would be examined by the adjudicating authority during adjudication proceeding. In the instant case, it is found that the entire case proceeded on the basis of the electronic documents as evidence. But the investigating officers had not taken pain to comply with the provisions of the law to establish the truthfulness of the documents and merely proceeded on the basis of the statements. Hence, the evidence of electronic devices, as relied upon by the adjudicating authority cannot be accepted. 10. The Hon'ble Supreme Court in the case of Anvar P.V. (supra), while dealing with Section 65B of the Evidence Act, 1872 (Pari materia to Section 138C of the Act, 1962), observed as under : "14. Any documentary evidence by way of an electronic record under the Evidence Act; in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. - Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the section starts with a no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ands in India. ........................................... ........................................... "22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the Court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case, does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough the said decision of the Tribunal and we note that the judgment of the Hon'ble Supreme Court in the case of Anvar P.V. (supra) has not been cited and was never brought to the notice of the Bench. Consequently, we are of the view that the decision in the case of Laxmi Enterprises is not applicable to the facts of the present case. 13. It is submitted by the Ld. Counsel for the appellant that the adjudicating authority had not examined the witnesses, as per the provisions of Section 138B of the Act, 1962. He has relied upon the decision of Hon'ble Delhi High Court, in the case of J&K Cigaratte v. Collector of Customs - 2009 (242) E.L.T. 189 = 2011 (22) S.T.R. 225 (Del.). In that case, the Hon'ble High Court, while dealing with Section 9D(1) of the Central Excise Act, 1944 (Pari matria to Section 138B of the Customs Act, 1962) have held that the procedure as prescribed in the statute is required to be followed for proving the truth of the statement. The said decision of the Hon'ble Delhi High Court has also been relied upon by the Hon'ble Punjab & Haryana High Court, in the case of G-Tech Industries v. Union of India - 2016 (339) E.L.T. 209 (P & H). We find force in the submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be determined under the provision of sub-rule (1) of Rule 3 of the 2007 Rules. Clause (iii) of Explanation to Rule 12 states that the proper officer can on 'certain reasons' raise doubts about the truth or accuracy of declared value. 'Certain reasons' would include conditions specified in clauses (a) to (f) i.e. higher value of identical similar goods of comparable quantities in a comparable transaction, abnormal discount or abnormal deduction from ordinary competitive prices, sales involving the special prices, misdeclaration on parameters such as description, quality, quantity, country of origin, year of manufacture or production, non-declaration of parameters such as brand and grade etc. and fraudulent or manipulated documents. Grounds mentioned in (a) to (f) however are not exhaustive of 'certain reasons' to raise doubt about the truth or accuracy of the declared value. Clause (ii) to Explanation states that the declared value shall be accepted where the proper officer is satisfied about the truth and accuracy of the declared value after enquiry in consultation with the importers. Clause (i) to the Explanation states that Rule 12 does not provide a method of determination of v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 'certain reasons' to doubt the truth or accuracy of the declared value in which event the proper officer is entitled to make assessment as per Rules 4 to 9 of the 2007 Rules. What is meant by the expression "grounds for doubting the truth or accuracy of the value declared" has been explained and elucidated in clause (iii) of Explanation appended to Rule 12 which sets out some of the conditions when the 'reason to doubt' exists. The instances mentioned in clauses (a) to (f) are not exhaustive but are inclusive for there could be other instances when the proper officer could reasonably doubt the accuracy or truth of the value declared. 17. The choice of words deployed in Rule 12 of the 2007 Rules are significant and of much consequence. The Legislature, we must agree, has not used the expression "reason to believe" or "satisfaction" or such other positive terms as a pre-condition on the part of the proper officer. The expression "reason to believe" which would have required the proper officer to refer to facts and figures to show existence of positive belief on the undervaluation or lower declaration of the transaction value. The expression "reason to doubt" as a sequitur would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the officer by furnishing of documents and evidence as to the accuracy or truth of the value declared. It is only in case where the doubt of the proper officer persists after conducting examination of information including documents or on account of non-furnishing of information that the procedure for further investigation and determination of value in terms of Rules 4 to 9 would come into operation and would be applicable. Reasonable doubt will exist if the doubt is reasonable and for 'certain reasons' and not fanciful and absurd. A doubt to justify detailed enquiry under the proviso to Section 14 read with Rule 12 should not be based on initial apprehension, be imaginary or a mere perception not founded on reasonable and 'certain' material. It should be based and predicated on grounds and material in the form of 'certain reasons' and not mere ipse dixit. Subjecting imports to detailed enquiry on mere suspicion because one is distrustful and unsure without reasonable and certain reasons would be contrary to the scheme and purpose behind the provisions which ensure quick and expeditious clearance of imported goods. 20. We would ex facie for the reasons recorded below reject t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entioned in the bill of entry should not be discarded unless there are contrary details of contemporaneous imports or other material indicating and serving as corroborative evidence of import at or near the time of import which would justify rejection of the declared value and enhancement of the price declared in the bill of entry. We have also elaborated and explained the legal position with reference to Rule 12 of the 2007 Rules. 24. Therefore, in the facts and circumstances of the present case, it has to be held that the adjudication order in original is flawed and contrary to law for it does not give cogent and good reason in terms of Section 14(1) and Rule 12 for rejection of the transaction value as declared in the bill of entry. The order in original is not in accordance with Section 14 and Rules 3 and 12 as the mandate of these provisions has been ignored. The Assistant Collector has rejected the transaction value as declared in the bill of entry which, as noticed above, is clearly and fundamentally erroneous besides being contradictory. In the aforesaid circumstances, we do not think that the order in assessment dated 7th April, 2017 can be sustained and upheld. It is se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise, Surat - 2015 (324) ELT 8 (SC), wherein at para 3 and 4 it is held as under: "3. We are of the opinion that the present appeal warrants to be allowed only on the ground that the impugned show cause notice was time barred and it was not a case where the Revenue could invoke the provisions of proviso to Section 11A of the Central Excise Act and take benefit of the extended period of limitation. From the facts noted above, it becomes clear that the Department had issued Show Cause Notice way back on 18-2-1994 asking the appellant to reclassify the goods under Chapter Heading 3920. Therefore, all relevant facts were within the knowledge/notice of the Department. Not only this, after the appellant had filed the reply to the said Show Cause Notice and was heard in the matter, the proposed move in the said Show Cause Notice was even dropped. 4. Therefore, under the aforesaid circumstances, by no stretch of imagination, the appellant can be treated as a person who had misled the authorities or made any misstatement/misdeclaration. The appeal is allowed on this ground itself without going into the issue of classification setting aside the impugned order. As a result, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be mentioned that as there is no suppression, penalty cannot be imposed." 24. Accordingly, we are of the view that the Department could not have issued the second show cause notice to the appellant for enhancing the valuation based on the data available in the computer printout recovered from M/s Abhishekh and Shree Abhishek India (supra) which we have legally held to be in inappropriate and illegal in terms of Section 138C of the Act. We also find that the Department has taken a stand before the Tribunal High Court and also before Hon'ble Supreme Court that assessment was provisional only on account of pending test report regarding oil content of the slack wax and residue wax and not on account of valuation is in fact contrary to the show cause notices. The show cause notice in its opening paragraph clearly indicates that the investigation was initiated for alleged undervaluation of slack wax and residue wax the test report was also one of the issue for such provisional assessment. The proper officer thus could not have finalized the provisional assessment ignoring the valuation issue is not correct. It is on record that the Assistant Commissioner has finalized provisional Bill ..... X X X X Extracts X X X X X X X X Extracts X X X X
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