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TMI Blog2020 (9) TMI 479X X X X Extracts X X X X X X X X Extracts X X X X ..... ons on the ground that the investigation was under the competency of the Public Prosecutor s office of the Italian Republic at the Tribunal of Massa Carra. Furthermore, the learned adjudicating authority in para 16 thereof, has noted that in the present case, the modus operandi of undervaluation mentioned in the Note-Verbale was not followed (a) intelligence regarding generic descriptions being used without revealing the actual variety of marble, did not stand scrutiny; (b) intelligence regarding price being in the range of 230-240 euros per tonne also did not stand and (c) the investigation did not produce any evidence of financial flowback through nonbanking channels in low tax countries. The learned adjudicating authority in this case has accepted that the Note-Verbale only indicated commencement of criminal proceedings against the indenting agents in Italy and did not conclusively prove the guilt against such persons. In fact, as noted in the impugned order, even the Deputy Director of DRI had also expressed his inability to provide information regarding the final outcome of criminal proceedings against such persons. Since the investigations with regard to alleged fraud co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rble blocks and slabs. During the disputed period, the appellant had imported such goods from the Italian suppliers and filed the Bills of Entry for assessment before the jurisdictional Customs authorities. Initially, the Bills of Entry were provisionally assessed and thereafter the same were finally assessed by the Department. After clearance of the goods from the port of import, the officers of DRI searched the premises of the appellant on the basis of some information in the form of Note-Verbale received by them from the Embassy of Italy, located at New Delhi. The said Note-Verbale indicated that criminal proceedings were lunched in the Court in Italy against four Italian persons in connection with money laundering, tax frauds and illegal financial activities. The said communication indicated that investigations were carried out by the Italian authorities which, inter alia revealed that in several cases of sale of marble (in blocks and slabs) by Italian companies to Indian companies, large scale under-invoicing had taken place, resulting in tax frauds in Italy and also loss of revenue to the Indian exchequer. During the course of search carried out at the appellant's premise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs Act, 1962. The learned Advocate also submitted that the provisions of Section 139 ibid are applicable to the departmental adjudication proceedings and it is open to an adjudicating authority to draw statutory presumption. In this context, he has placed reliance on the decision of this Tribunal in the case of Truwoods Private Limited vs. Commissioner of Customs, Visakhapatnam, 2006 (204) ELT 288 (Tri.-Bang.), affirmed by Hon'ble Supreme Court, reported in 2016 (331) ELT 15 (S.C.). With regard to rejection of the declared value and re-determination of the transaction value, the learned Advocate submitted that the department had not followed the procedures laid down under Rule 12 of the CVR and thus, the provisions contained in Rule 9 ibid cannot be invoked for re-determination of the value of subject goods. He has relied upon the judgment of Hon'ble Supreme Court in the case of Century Metal Recycling vs. Union of India -2019 (367) ELT 3 (S.C.) and Commissioner of Customs vs. South India Television (P) Ltd. - 2007 (214) ELT 3 (S.C.) to justify the above stand. 4. On the other hand, Shri K.K. Srivastava, the learned AR appearing for the Revenue reiterated the fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd accordingly, the appellant is liable to pay the adjudged demands: (a) that though Mr. Swamy had categorically denied that intermediaries were involved in the imports under dispute and that payments were made only of the actual values through banking channels, however, he had agreed to make the payments of differential duty after checking the records; (b) that though the statement of Mr Swamy showed that there was no undervaluation involved, but he agreed to pay the differential duty after checking the correctness of the records; that in the communications accompanying the payments, it has been stated that the payments are pre-deposit towards differential duty liability in respect of rough marble blocks from Italy as contended by officers of DRI; thus, it was clear that the actual invoice values which were shown to Mr. Swamy at the time of recording of his statement were checked for correctness and payment of differential duty has been made after recording of his statement; (c) that there was no hint of any demur or protest in the communications accompanying the payments and that there was no argument that the payments were not voluntary; hence, it could therefore be con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the Note-Verbale were sufficient evidence to establish the charge of undervaluation. We find that the appellant vide its letters dated 22.09.2016, 23.09.2016 and 16.12.2016 addressed to the Assistant Director of DRI, Mumbai Zonal Unit had stated that the payments made by it in connection with enquiry into the matter of import of the subject goods were towards 'pre-deposit'. Further, we also find from the certificate dated 14.06.2018 issued by M/s V.C. Shah Co., Chartered Accountants that the appellant had reflected the pre-deposited amount as Receivables from Customs Department under the accounting head of Current Assets in the Balance Sheet prepared for the year ending 31.03.2017. Such documentary evidences prove the fact, beyond any shadow of doubt that the pre-deposited amount cannot be considered as voluntary payment and that the appellant was desirous in getting back such amount either at the adjudication or the appellate stage. Thus, it cannot be said that the appellant had deposited the duty amount out of its own volition and there was no hint of any demur or protest. Further, it is not the case of Revenue that the appellant at point of time had stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e alleged to have been committed by a person under the Act. Therefore, a 'request letter' cannot be termed as a 'document' in the nature of evidence as stipulated under Section 139(ii) ibid, to establish a charge of undervaluation against a person. Secondly, the said Note-Verbale does not pertain to investigations which are carried out under this Act of 1962, but pertain to investigations being carried out under the Italian laws and such report was forwarded to the Indian authorities to provide evidence against the said persons in Italy. Hence, Section 139(ii) does not contemplate or cover a situation like the present case, where investigations were initiated in a place outside India, consequent to which investigations were initiated in India. 10. The learned adjudicating authority in this case has accepted that the Note-Verbale only indicated commencement of criminal proceedings against the indenting agents in Italy and did not conclusively prove the guilt against such persons. In fact, as noted in the impugned order, even the Deputy Director of DRI had also expressed his inability to provide information regarding the final outcome of criminal proceedings agains ..... X X X X Extracts X X X X X X X X Extracts X X X X
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