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TMI Blog2021 (6) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 M/s. SES Enterprise Commissioner of Customs (Import) New Custom House, New Delhi. 4. C/50108/2016 Shri Rashid Ali Commissioner of Customs (Import) New Custom House, New Delhi. 5. C/50109/2016 M/s. Kamlin International Commissioner of Customs (Import) New Custom House, New Delhi. 6. C/50112/2016 M/s. Mondeo Overseas Commissioner of Customs (Import) New Custom House, New Delhi. 7. C/50117/2016 M/s. Fox International Commissioner of Customs (Import) New Custom House, New Delhi. 8. C/51350/2019 Shri Sunny Gujral Commissioner of Customs (Import) New Custom House, New Delhi. 2. Facts in brief for the disposal of the impugned appeal are as follows: Based upon intelligence regarding undervaluation and mis-declaration into imports of 'Food Supplements' from several Delhi based importers namely, M/s. Jaskaran, M/s. SES M/s. Fox, M/s. Mondeo and M/s. Kamlin and that these importers were suppressing Retail Sale Price (RSP) of 'Food Supplements' in order to evade CVD; that searches were conducted on 02.08.2006 at the following premises: M/s. Jaskaran, Karol bagh, New Delhi, M/s. SES, Sector 56, Gurgaon, M/s. Fox, Sector 56 Gurgaon, M/s. Mondeo, Nizam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while importing those food supplements. He accordingly, is alleged to have generated fake invoices in the name of firm owned / controlled by him showing lower value with a view to evade customs duty, though the original invoices were admittedly raised by the foreign suppliers in his name. Department also observed that MRP prices were not the actual MRP but fake stickers were prepared in conformity with the declared under invoiced prices to the Customs. The Department alleged that the MRP stickers which were meant for the goods to be sold from his shop were having much higher value than the one as was mentioned on the stickers affixed on the food supplements at the time of import. Department alleged that this has been done by Shri Sunny Gujral in order to evade CVD who intentionally declared lesser RSP of food supplements. With these observations the aforesaid show cause notice dated 28.08.2008 was served not only upon Shri Sunny Gujral but also upon the companies for whom he was the proprietor, i.e. M/s. Jaskaran Enterprises and M/s. Fox. The show cause notice was also served upon remaining above named firms and the respective proprietors along with one of the dealer M/s. General ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Learned Counsel laid emphasis that the declared value has to be accepted and the burden to prove alleged under-valuation rest heavily on the Department. In the absence of any such evidence as mentioned above, the original Adjudicating Authority has wrongly confirmed the impugned demand. Sole reliance for confirming the demand is the statement of Shri Sunny Gujral which was actually got extracted by the officers of DRI under threat. Such statements in the absence of any corroborative evidence to support the department's allegation can have no evidentiary value. Learned Counsel has placed reliance upon the decision of Tribunal in the case of Commissioner of Customs, Calcutta vs. Hemani International reported as [2001 (137) ELT 254 (Tri-Kolkata)]. Learned Counsel also submitted that even methodology followed in determining enhanced value is totally faulty and cannot be sustained for the reason that same has to be arrived in accordance of the Customs Valuation (Determination of value of Imported Goods) Rules, 2007. Rule 3 sub rule 2 mentions that the transaction value cannot be rejected except under special circumstances. There is no such circumstance brought forth by the departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impressed upon. Finally it is emphasised that the Original Adjudicating Authority has wrongly imposed penalties on the importing firm/ proprietorship firms as well as / proprietor thereof under section 112 and 114AA of the Customs Act, 1962 which amounts to double jeopardising the appellant. Penalties are, therefore, liable to be set aside on this score itself. With these submissions, learned Counsel has prayed that the Order-in-Original is liable to be set aside and the appeal to be allowed. 8. While rebutting these arguments, the learned Departmental Representative mentions that the submissions made by appellants are incorrect both on facts as well as on law points that too with an intent to mislead the bench. It is further submitted as follows:- (i) The allegation against the appellants are that of forgery, mis-representation, undervaluation of goods (food supplements) to the extent of more than 50 percent of the actual invoice values by suppressing the actual invoices and submitting forged / bogus invoices before the assessing Authorities by the appellant. Hence, plea of limitation can not be the defence as fraud vitiates everything. (ii) To elaborate it is submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ements. The case records were forwarded to the DRI. (x) Shri Sunny Gujral also had requested for provisional release and the provisional release of the goods was made after complying with the terms and conditions of the Provisional release order. (xi) The period of violation is during the year 2005 & 2006. Learned Departmental Representative has laid emphasis on para 10.1.3 of the Order under challenge. It is further submitted that the invoices as recovered from the premises of Shri Sunny Gujral are found to be duly signed by him and two witnesses and reflects manipulated description of food supplements without any mention of their item code. The quantity and value of the food supplements are matching with respect to the original invoices No. 128595-IN dated 12/04/2016. Learned Departmental Representative has also exemplified the observations. 9. Learned Departmental Representative further impressed upon that all the said allegations have duly been admitted by Shri Sunny Gujral himself vide his statement given not only once but several times dated 02.08.2006, 04.08.2006, 12.08.2006, 14.12.2006 and 05.11.2008. It is impressed upon that deposition in these statements are corro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done in terms of section 14 of the Customs Act, 1962 read with Customs Valuation Rules, 2007 which provides that transaction value of the goods shall be the price actually paid or payable for the goods when sold for export to India where the buyer or the seller of goods are not related and the price is the sole consideration for the same subject to such other conditions as may be specified under the Rules made in this behalf. The Valuation Rules have been framed in exercise of powers conferred by section 14 of the Customs Act and in normal course, the declared value i.e. the price which is actually paid for importing the goods has to be treated as the transaction value. This is settled position law of as being held by Apex Court in the case of NOIDA vs. M/s. Sanjivani Non-Ferrous Trading Pvt. Ltd (Civil Appeal No. 18300-18305/2017) decided on 10.12.2018 wherein it has also been held that the said transaction value / declared price can be rejected only with the cogent reasons by undertaking the exercise as to on what basis the assessing Authority could hold that the paid price was not the sole consideration of the transaction value and the burden casts upon the department to prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.2006, 12.08.2006, 14.12.2006 and 05.11.2008, shows that in the admissions made, each previous statement of admission has dully been acknowledged as correct in the subsequent statement. Such corroborative admission with no single retraction thereof till date. No opportunity to prove the correct transaction value of goods by providing any documents as that of Bank attested generated invoices, as per our opinion, is the sufficient admission by the appellant for the guilt as alleged by the Department against the appellant. We are also of the opinion that in such facts and circumstances there remains no need for Revenue to discharge its burden as that of collecting evidence in the form of contemporaneous imports or to produce any NIDB data or even any market survey report. In Kackar Singh vs. State of Punjab 1994 (3) SCC 569 guidelines for recording confessions impressing upon that comfortable atmosphere be provided to the person to volunatarily give the statements. As per decision in State (NCT of Delhi) vs. Navjot Sandhu [2005 (11) SCC 600] confessions are considered highly reliable because no rational person would make admission against his interest unless prompted by his conscienc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Customs (Import), Mumbai reported as [2015 (328) ELT 609 (Tri-Mumbai) has held that once the witnesses admitted to undervaluation and accepted actual price of imported goods mentioned in the purchase orders messages of supplier, then the said admitted price becomes transaction value in which case, there is no need to resort to contemporaneous import. 14. In the present case, we observe that Sunny Gujral has categorically admitted for having discussed with the Foreign suppliers about the actual price and that the said actual prices were mentioned on the invoices received from the foreign suppliers. It is thereafter that Shri Sunny Gujral used to prepare fake invoices in his computer reducing the price of the invoices of foreign supplier to the extent of almost 50% thereof so as to file the same along with Bill of Entry. He also admitted, categorically that the prices of the fake invoices were used to be given through the valid mode of money transfer. The balance price i.e. the difference of the price of original invoice as received from foreign vendor and the fake invoice generated by Shri Sunny Gujral is categorically admitted to be sent to the foreign supplier through his re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ast in terms of Section 30 of Evidence Act, involvement of accused is admitted in the alleged crime by maker of confession as it was also held in Nazir Khan vs. State of Delhi reported as [2003 (8) SCC 46]. The evidentiary value of the confessional statement made by one accused against the other co-accused persons has been comprehensively discussed in Haricharan Kurmi vs. State of Bihar reported in [AIR 1964 SC 1184 ] . The Constitution Bench of Hon'ble Supreme Court referred to section 3 of the Evidence Act and observed that confession of a co-accused is not evidence within the meaning of said section 3. It is neither an oral statement which the court permits or required to be made before it as per section 3(1). Nor does it fall in the category of evidence referred to in section 3(2) of the Evidence Act which covers all documents produced for inspection of the Court. However, section 30 provides that though such a confession may not be evidence as strictly defined by section 3 of the Evidence Act, but it is an element which may be taken into consideration as against the maker but not against anyone else till the maker has admitted another's involvement that too subject to sufficie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said statement of Shri Sunny Gujral being the admission of his own guilt and of none else. 18. In view of these observations, we hold that though there is no illegality in the order of the adjudicating authority below while confirming the allegations of under-invoicing the price of imported food supplement by manipulating the invoices against Shri Sunny Gujral based upon his admission. But we are of the opinion that in the absence of any document produced by the department to prove their allegation, as against other importers and proprietors either in the form of Bill of Entry or any invoices either of the foreign supplier or the fake invoices with respect to any of these importers and that admission of Sunny Gujral cannot be read against the other importer irrespective of the fact that these firms were managed and controlled by Sunny Gujral himself none else than Shri Sunny Gujral can be penalised. In such circumstances, the order under challenge confirming the demand of differential duty from the remaining importers other than M/s. Jaskaran Enterprises and imposition of penalty on other proprietors other than Shri Sunny Gujral is not sustainable in the eyes of law. We further ..... X X X X Extracts X X X X X X X X Extracts X X X X
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