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TMI Blog2021 (11) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... be raised about its truthfulness - No explanation has been given by the DRI as to if the purported export declaration of higher value was available why corresponding invoices were not provided by the Belgium Customs as export declaration is always prepared on the basis of an invoice. Further, the duty of 74,640 has been confirmed on the ground that there was a difference in weight to the extent of 8.552 MT in respect of two Bills of Entry both dated 12.9.2014 as the procured invoices showed the actual quantity 447.492 MT where the actual invoices showed the total quantity imported as 438.940 MT. On the issue of inter-relationship between the three importers and the fact that all the three have been treated as related persons on twin grounds. In the first place it has been observed by the Principal Commissioner that Shri Prakash Chand Garg was Director of M/s NPT whereas his sons Shri Vijay Garg and Shri Ashish Garg were Directors of M/s SPPL and M/s SIPPL. He further observed that all three are part of same family and reside at the same residential address. He noted that there had been fund transfers among the three importers during period the financial year 2017-18 and these fund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent ORDER These six appeals arise out of order-in-original no. MUN-CUSTM-000-COM-13-19-20 dated 30.12.2019 passed by the Principal Commissioner of Customs, AP & SEZ Mundra. The details of duty demand confirmed and penalty imposed are shown in the tables below: M/s. NPT Papers Pvt Ltd (NPT) S.No. Imports through Period of duty demand Duty demanded (in Rs) Penalty imposed (in Rs.) 1. Mundra Port 18-02-2014to22-06-2017 1,37,54,699/- (i)1,37,54,699/-u/s114A (ii)30,00,000u/s114AA 2. ICD,TKD,New Delhi 14-10-2014 12,41,304/- (i)12,41,304/-u/s114A (ii)3,00,000/-u/s114AA 3. Chennai Sea Port 15-11-2014 4,086/- (i) 4,086/-u/s114A (ii) 1,000/-u/s114AA M/s. Salwan Papers Pvt Ltd (SPPL) S.No. Imports through Period of duty demand Duty demanded (in Rs) Penalty imposed (in Rs.) 1. Mundra Port 29-08-2014to11-05-2017 42,89,772/- (i) 42,89,772/-u/s114A (ii)10,00,000/-u/s114AA 2. ICD, TKD, New Delhi. 11-11-2014to22-11-2014 19,41,375/- (iii)19,41,375/-u/s114A (iv)4,50,000/-u/s114AA M/s. Salwan International Papers Pvt Ltd (SIPPL) S.No. Imports through Period of duty demand Duty demanded (inRs) Penalty impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I, Bangalore to M/s NPT answerable to Joint/Additional Commissioner of Customs(Import),ICD,Tughlakabad,NewDelhi proposing seizure of stocklot of coated/uncoated papers inrolls seized from NPT, godown Alipur, Delhi on 25.12.2014. 2.3 The matter was adjudicated by Additional Commissioner of Customs ICD TKD New Delhi vide order dated 9.2.2017 ordering confiscation of seized goods and allowed the same to be redeemed on the fine of ₹ 25 lakhs (Rupees Twenty-Five Lakh Only) and penalties were also imposed on the importer. 2.4 The Commissioner of Customs (Appeals) vide his order No. CC(A) Cus/D-II/ICD TKD (Import)/589/2017 dated 9.8.2017 set aside the Order-In-Original dated 9.2.2017 and held in there was no clear and cogent evidence to reject the transaction value for the purpose of assessment and while doing so he relied upon various judgments of the Supreme Court. 2.5 A letter dated 31.1.2018 was received from Second Secretary (Trade) Embassy of India, Brussels to DRI, Bangalore containing 21 pages which included a covering letter from Federal Public Service Finance, General Administration of Customs and Excise, Administration of Inquiry and Investigation Central Component dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Directors in the said M/s Affluent Enterprises Ltd. It was also informed that one Shri Vikash Khatuwala was the owner of two firms namely M/s The Crown Commercial House, Hong Kong and M/s Trans Oceanic Co Hong Kong. 2.9 A Show Cause Notice dated 16.2.2019 was issued under Section 28(4) of the Customs Act 1962 by invoking extended period of limitation to aforementioned six Appellants on the basis of four invoices and five export declarations forwarded by the Indian Embassy Brussels vide letter dated 31.1.2018 and also on the basis of the statement recorded from Shri Prakash Chand Garg dated 8.8.2018. A proposal was made to reject the transaction value of 43 consignments imported from M/s. KorCo AB, Sweden by M/s NPT during the period February,2014 to June,2017 and differential duty was demanded as per the chart extracted hereinabove. It was alleged that M/s Affluent Enterprises Ltd, Hong Kong was one of major suppliers of goods to M/s NPT. Shri Prakash Chand Gargwas the Director of M/s Affluent Enterprises Ltd and the said M/s Affluent Enterprises Ltd was the major supplier of stock lot of coated/un-coated paper to M/s NPT, M/s SPPL and M/s SIPPL. It was alleged that on further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoices procured from Belgium Customs in respect of Bills of Entry No. 6735100 and 6735402 both dated 12.9.2014 when compared with invoices submitted by M/s NPT to the Indian Customs it was found that the total quantity was declared as 438.94 MT whereas in original invoice/export declaration recovered from the overseas supplier, the quantity was mentioned as 447.497 MT. Hence there was a misdeclaration of the quantity to the extent of 8.552 MT. The duty has been demanded by invoking Rule 9 of CVR, 2007 from all the three importers. Penal action was also proposed against the three importers under Section 114A and 114AA of the Customs Act and penal action under Section 114AA and 112(a) of the Customs Act was proposed against Shri Prakash Chand Garg, Shri Ashish Garg and Shri Vijay Garg. 2.10 The matter was adjudicated by the Principal Commissioner of Customs, AP and SEZ Mundra vide order dated 30.12.2019 in which he has confirmed the differential duty demand and imposed penalties as shown in table in para-1 above. 3 Shri K.K Anand, Ld. Advocate appeared for all the six Appellants and advanced the following submissions: - 3.1 That the DRI officers had seized 750 MT of the goods per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Customs, Jaipur, reported at 2004(173) ELT 16 (Tri-Del) which was upheld by the Supreme Court as reported in 2015(321) ELT A277(SC) (v) Truewoods Private Limited vs. Commissioner of Customs, Visakhapatnam, reported at 2006 (204) ELT 288 (Tri. -Bang) (vi) Haji Sumar vs. Commissioner of Customs, Chennai reported at 2020 (371) ELT 533 (Tri. -Chennai) 3.3 That no reliance can be placed on the aforementioned documents as the Appellant had requested for cross-examination of three persons viz. Shri Aseem Nanda, Second Secretary (Trade), Embassy of India, Brussels, Shri Brigitte Decatte, Fiscal Expert, Administration of Enquiry and Investigation, Brussels & Shri JeanSmets, Adviseur-Eerstaanwezend Inspector, Brussels, as the differential duty was solely based on documents received from overseas but the Principal Commissioner on erroneous reasoning denied the same. 3.4 That no reliance can be placed on the said documents as M/s. NPT had also sent copies of these documents (procured by the DRI from Belgium Customs) to the supplier, M/s KorCo AB, Sweden, for their comments, vide NPT e-mail dated 26.07.2019. In response the supplier denied ever having supplied these documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declarations relied upon by the DRI which has been relied upon as RUD 31D wherein in the export declaration the value PMT has been shown as Euro 427 whereas in the corresponding invoice the FOB value has been shown as US Dollar 622. The remaining 15 export declarations pertain to period 2.3.2016 to 22.6.2017. All the remaining 15 export declarations were matching with the invoice value declared to the Indian Customs as would evident from the chart. In this regard, he stated that all these export declarations were part to the reply of Show Cause Notice as Annexure-12 and are available at pages 1636 to 1780 of Paper Book Vol.3 but the Principal Commissioner has not rendered any finding on the same. 3.6 He stated that M/s NPT had also brought on record ample evidence which showed that they had imported identical/similar goods from M/s Korco AB, Russia at sea port Mundra which were imported at the same price as imported from European Union. In this regards he took us through invoices, bills of entry, and some export declarations which were also enclosed with the reply to the Show Cause Notice. He also took us through evidence of identical/similar goods which were imported by M/s NPT f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T 2018 (362) ELT 961 (CHHATTISGARH) (iii) COMMISSIONER OF CENTRAL EXCISE, DELHI-1 VS. KUBER TOBACCO INDIA LTD, REPORTED AT 2016 (338) ELT 113 (TRI.-DEL.). 3.8 That the entire investigation was with regards to imports effected by M/s NPT. No investigation whatsoever was undertaken with regards to imports effected by M/s SPPL and M/s SIPPL whereas the higher value shown in four invoices and five export declarations has been applied across the board in respect of imports effected for M/s SPPL and M/s SIPPL which is legally not sustainable. 3.9 That even in respect of the imports effected by M/s SPPL out of 18 consignments, 13 consignments were imported at Sea Port Mundra and 5 consignments were imported at ICD TKD, Delhi during period 29.8.2014 to 11.5.2017. They have brought two export declarations on record which are available at pages no. 1904 and 1913-1914 of Paper Book Vol.4 which show the price of Euro 339 PMT and Euro 304.44 PMT which when converted to US Dollar comes to 363 PMT and 325 PMT respectively. Even in this case there is no finding of the Principal Commissioner to this vital piece of evidence. 3.10 That all the three importers have been treated as related persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is well settled law that even if the foreign supplier of the indian importers is related person, transaction value cannot be rejected only on the ground that the transactions are between 'related person'. In this regards he has placed reliance on the following judgments: (i) COMMISSIONERVS.CLARIANT(INDIA)LIMITED-2007(210)E.L.T.481(S.C.), (ii) ANIL KUMAR ANAND VS. COMMISSIONER OF CUSTOMS (PREV.) 2019(366)E.L.T.601(S.C.) (iii) L.R. MAURYA VS. COMMISSIONER OF CUSTOMS, BHOPAL-2019 (370) E.L.T. 906 (TRI. -DEL.) 3.13 That it is the submission of Shri Anand that except for reproducing Rule 2(2) of CVR which is a deeming provision to treat one person to be related to another no particular clause of the same has been invoked in the Show Cause Notice to treat three importers as related persons of M/s Affluent Enterprises Ltd. There is absolutely no foundation laid down in the Show Cause Notice as to how M/s The Crown Commercial House, Hong Kong was a related person of the three importers. In support of this submission, he has placed reliance of the law laid down by the Hon'ble Apex Court in the case of Commissioner vs. Brindavan Beverages Pvt Ltd reported in 2007(213) ELT 487(SC). 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TRI.-MUM) 3.16 That in the instant case there is no evidence to show that any amount was paid directly or indirectly, to the suppliers over and above the value shown in the invoice presented before Indian Customs. When there is no evidence of sending extra remittance to the supplier/exporter, the DRI could not have resorted to Rule 9 of CVR 2007 to reject the transaction value. In support of these submissions he placed reliance on the following judgments:- (i) BAYER INDIA LTD VS. COMMISSIONER OF CUSTOMS, MUMBAI REPORTED AT 2006 (198) ELT 240 (TRI.-MUMBAI) which has been upheld by the supreme court as reported at- 2015(324) ELT17(SC). (ii) TeleBrands (India) Pvt Ltd vs. Commissioner of Customs(Import),Mumbai reported at-2016 (336) ELT 97(Tri.-Mum). 3.17 That the Principal Commissioner in his order has ordered confiscation of 548 MT of goods seized at godown premises of NPT at Chennai and allowed the same to be redeemed on a Redemption Fine of ₹ 11 lakhs under Section 125 of the Customs Act, 1962. It is his submission that since the declared value is the correct assessable value the said goods are not liable for confiscation. 3.18 That in view of above submission, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in his statement dated 8.8.2018 when confronted with documents obtained from Belgium Customs had accepted its genuineness and also accepted the undervaluation. 4.8 That the Principal Commissioner has for cogent reasons denied the cross examination of three officials as requested by the Appellants. 4.9 That the Principal Commissioner has correctly invoked Rule 9 of CVR, 2007 to reject the transaction value as there was sufficient reasons to doubt the truth and accuracy of the transaction value. Rule 12 of CVR, 2007 fully empowers the proper officer to re-determine the price under Rule 9 of CVR, 2007 keeping in view the modus operandi resorted by all the three Importers to undervalue the goods. He therefore supported order-in-original in totality. 4.10 In support of his various submissions he has placed reliance on the following judgments: (i) TRANSWORLD POLYMERS P LTD VS. CC, NHAVASHEVA REPORTED AT 2018 (363) ELT 996 (TRI-AHMD) (ii) MARTWIN ELECTRONICS VS. CST, AHMEDABAD REPORTED AT 2016(331) ELT 85 (TRI-AHMD) (iii) KONIA TRADING CO VS. COMMISSIONER CUSTOMS, JAIPUR REPORTED AT 2006(199) ELT 644 ( TRI-DEL) (iv) LAXMI ENTERPRISES VS. CC, NEW DELHI REPORTED AT 2018(361) ELT 1054 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 400 148EE0000 -do- 635 235 318&32 C 226 & 252 of Paper book Vol.1. 10.6.14 13.5.14 018947266 9.5.14 4. 6228695 1001561 400 148EE0000 13368 625 225 31C&32 0 229 & 258 of Paper book Vol.1 24.7.14 25.6.14 024046867 13.6.14 13.6.14 5 7749575 1002096 400 14BEE0000 13954 605 205 31E&32E 247 & 261 of Paper book Vol.1 19.12.14 17.11.14 046211n4 17.11.14 14.11.14 6. 7749m 1002097 400 148EE0000 13954 605 205 31E&3 2F 247 & 263 of Paper book Vol.1 19.12.14 17.11.14 046211n4 17.11.14 14.11.14 7. 6735100 1001712 400 14BEE0000 13632 646 246 31D&32 G 245 & 265of Paper book Vol.1 12.9.14 11.8.14 032215782 10.8.14 8.8.14 8. 6735402 1001713 400 14BEE0000 13632 646 246 31D&3 2H 245 &268 of Paper book Vol.1 12.9.14 11.8.14 032215782 10.8.14 8.8.14 06. We have gone through the actual invoices submitted to Indian Customs and four invoices procured from Belgium Customs. We find the following discrepancies which are very vital to the case at hand: (i) Four invoices and five export declarations relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f investigation of any offence alleged to have been committed by any person under this Act, And such document is tendered by the prosecution in evidence against him or against him and any other person who is tried jointly with him, the court shall- (a) presume, unless the contrary is proved, that the signature and every other part of St\(:h document which purports to be in the handwriting of any particular person or which the court may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that person's handwriting, and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested; (b) admit the document in evidence, notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence; (c) in a case falling under clause (i) also presume, unless the contrary is proved,the truth of the contents of such document.] (d) [Explanation: For the purposes of this section "document" includes inventories, photographs and lists certified by a Magistrate under sub-section (lC) of section 110.]" In our consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any offence alleged to have been committed by any person under the Act. The majority points out that these documents, which are photocopies, do not bear the signature either of the exporter, the forwarding agent, the stevedore or the Customs Officer. In fact, they do not bear any signature whatsoever and, therefore, the authenticity of these documents is suspect and iris not possible to presume that the originals are duly signed. It is for this reason that the majority did not consider it safe to place reliance on photocopies of copies of the documents recovered by the Customs Officer not from the Customs Department in Japan but from the agencies which are stated to have exported the material in question. It is also found that one of these copies of the alleged declarations bears the seal of the Customs at Kobe and the name of the vessel is shown to be 'Raya Fortune' but the itinerary of that vessel collected at the instance of the Indian Customs shows that the said vessel had never touched Kobe which raises a serious doubt as to how far this document is authentic. The majority raises the question as to how the declaration at Kobe and shipment from Osaka are reconcilable not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... details as mandated by the Hon'ble Apex Court in above two judgments the same cannot be relied upon against the three importers. Similarly corresponding five export declarations are also not admissible in the same manner. Further we find that in respect of two Bills of Entry at serial number 2 and 3 of the above chart only one export declaration dated 9.5.2014 has been relied upon without bringing on record corresponding invoices. No explanation has been given by the DRI as to if the purported export declaration of higher value was available why corresponding invoices were not provided by the Belgium Customs as export declaration is always prepared on the basis of an invoice. Further, the duty of ₹ 74,640 has been confirmed on the ground that there was a difference in weight to the extent of 8.552 MT in respect of two Bills of Entry both dated 12.9.2014 as the procured invoices showed the actual quantity 447.492 MT where the actual invoices showed the total quantity imported as 438.940 MT. Since we have already held hereinabove that the procured invoices are not admissible in evidence hence the charge of misdeclaration in quantity of import of goods in respect of two Bills of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the value referred to above and not merely the invoice price. On the plain reading of Section 14(1) and Section 14(1A), it envisages that the value of any goods chargeable to ad valorem duty has to be deemed price as referred to in Section 14(1). Therefore determination of such price has to be in accordance with the relevant rules and subject to the provisions of Section 14(1). Therefore, the transaction value under Rule 3(1) of CVR, 2007 must be the price paid or payable on such goods at the time and place of importation in the course of international trade, when the seller and buyer have no interest in the business of each other and price is sole consideration for the sale. Therefore, what has to be seen by the department is the value or cost of the imported goods at the time of importation that is at the time when the goods reach customs barrier. Therefore, the invoice price is not sacrosanct. However, before rejecting the invoice price the department has to give cogent reason for such rejection. This is because the invoice price forms the basis of transaction value. Therefore, before rejecting the transaction value as incorrect or unacceptable department has to find whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levision P Ltd reported in 2007(214) ELT 3(SC) where in para 6 , para 7 and para 8 it has been laid down as under :- "6. We do not find any merit in this civil appeal for the following reasons. Value is derived from the price. Value is the function of the price. This is the conceptual meaning of value. Under Section 2(41), "value" is defined to mean value determined in accordance with Section 14(1) of the Act. Section 14 of the Customs Act, 1962 is the sole repository of law governing valuation of goods. The Customs Valuation Rules, 1988 have been framed only 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 mis-declaration regarding the price. There is no allegation of mis-declaration in the context of the description of the goods. In the present case, the allegation is of under-invoicing. The charge of under-invoicing 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 wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment wants to allege under-valuation, it must make detailed inquiries; collect material and also adequate evidence. When under-valuation is alleged, the Department has to prove it by evidence or information about comparable imports. For proving under-valuation, if the Department relies on declaration made in the exporting country, it has to show how such declaration was procured. We may clarify that strict rules of evidence do not apply to adjudication proceedings. They apply strictly to the courts' proceedings. However, even in adjudication proceedings, the AO has to examine the probative value of the documents on which reliance is placed by the Department in support of its allegation of under-valuation. Once the Department discharges the burden of proof to the above extent by producing evidence of contemporaneous imports at higher price, the onus shifts to the importer to establish that the invoice relied on by him is valid. Therefore, the charge of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bate. The goods were of Chinese origin. In the Fax message it is further stated by the foreign supplier that he was required to show the export value on the higher side in order to claim the incentives given by his Government. This explanation of the foreign supplier, in the present case, had been accepted by the Commissioner. In his order, the Commissioner has not ruled out over-invoicing of the export value by the foreign supplier in order to obtain incentives from his Government. For the aforestated reasons, we find no infirmity in the impugned judgment of the Tribunal". 8. Before concluding, we may point out that in the present case at the stage of show cause notice, the Department invoked Rule 8 on the ground that the invoice submitted by the importer was incorrect. In Eicher Tractors (supra) this Court observed that Rule 4(1) of the Customs Valuation Rules refers to the transaction value. Utilization of the word 'the' as definite article indicated that what should be accepted as the transaction value for the purpose of assessment under the Customs Act is the price actually paid by the importer for the particular transaction, unless it is unacceptable for the reasons set out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f contemporaneous imports where the values of similar goods were imported at the same value at which M/s NPT had imported the goods. It is an admitted position that this Order-in-Appeal was accepted by the department as no appeal was filed by the department before this Tribunal. Even the Principal Commissioner has accepted the same in para 24.3.3 of the Order-in-Original. It would mean that the department had accepted the legal position that when there was evidence of imports of identical/similar goods at the same value, transaction value cannot be rejected. We may note here that the documents from Belgium Customs were received subsequent to the passing of above Order-in-Appeal i.e. on 31.1.2018 but the fact remains that when the Commissioner (Appeals) passed the order in favour of M/s NPT, the DRI Bangalore unit was in process of investigation and had already entered into correspondence with Embassy of India, Brussels. If the DRI or the Customs Department was of the view that M/s NPT and two other importers had indulged in undervaluation nothing prevented them from challenging the above Order-in-Appeal before the Tribunal. We find that there cannot be two different set of findings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn to him. If M/s NPT would have indulged in undervaluation Shri Garg would not have sought ten day time to verify the facts. It means his statement dated 8.8.2018 was not conclusive. The DRI should have called him again after ten days for further clarification if any but he was never summoned after 8.8.2018. It is well settled law that the admission is extremely important piece of evidence but it cannot be said that it is conclusive; it is open to the person who made the admission to show that it is incorrect. This proposition of law has been well laid down by Hon'ble Apex Court in the case of Pullangoda Rubber Produce Co Ltd vs. State of Kerala and others reported at (1972) 4 SCC 683. Further, we observe that the statement of Sh. Prakash Chand Garg dated 8.8.2018 was with regard to the procured documents. Once we have held that the said documents are not admissible in evidence any statement recorded on said procured documents will have no evidential value. 6.8 The Principal Commissioner in para 26.5 of his order has observed that nowhere it is inferred that the said retraction was received by the DRI so as to record a counter statement in context with the retraction. We observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls only. Once it is proved that there is no evidence of extra remittance transaction value cannot be discarded. In support of these findings, we place reliance on the following Judgments: (i) BAYER INDIA LTD VS. COMMISSIONER OF CUSTOMS, MUMBAI 2006 (198) ELT 240 (TRI.-MUMBAI) which has been upheld by the Supreme Court as reported at- 2015(324)ELT17(SC). (ii) TELEBRANDS (INDIA) PVT LTD VS. COMMISSIONER OF CUSTOMS(IMPORT), MUMBAI reported at-2016(336)ELT97(Tri.-Mum). 6.10 That on the issue of inter-relationship between the three importers and the fact that all the three have been treated as related persons on twin grounds. In the first place it has been observed by the Principal Commissioner that Shri Prakash Chand Garg was Director of M/s NPT whereas his sons Shri Vijay Garg and Shri Ashish Garg were Directors of M/s SPPL and M/s SIPPL. He further observed that all three are part of same family and reside at the same residential address. He noted that there had been fund transfers among the three importers during period the financial year 2017-18 and these fund transfers were duly reflected in their financial statements. He further relied upon a letter dated 29.8.2018 of Consulat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hong Kong, it is true that Shri Garg was one of the Director of M/s Affluent Enterprises Ltd, but during the period in dispute there was no imports by M/s NPT from M/s Affluent Enterprises Ltd, Hong Kong. Further with regard to M/s SIPPL, no imports were made from M/s Affluent Enterprises Ltd, Hong Kong during the relevant period. Only M/s SPPL imported three consignments from M/s Affluent Enterprises Ltd, Hong Kong. We find that merely because sons of Shri Prakash Chand Garg were Directors in M/s SPPL they cannot be treated as related persons in terms of Rule 2(2) of CVR, 2007. In any event the prices at which M/s Affluent Enterprises Ltd sold the goods to M/s SPPL were at the same level as they sold to other buyers in India such as M/s Yashika Traders and M/s Shivam Enterprises. In this regards we have gone through invoices of these two firms where the price PMT has been shown in the range of US$ 400 to US$ 425 PMT. This evidence was placed before the Principal Commissioner but he has not rebutted or controverted on the same. Similarly in respect of M/s The Crown Commercial House, Hong Kong, M/s SPPL does not have any relation with the owner Shri Vikash Khatuwala. Merely because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red value based on Rule 9 of CVR, 2007. 6.14 We find that the above finding of the Principal Commissioner is wholly unsustainable, factually incorrect and contrary to the evidence on record. In the first place the finding of the Principal Commissioner that the export documents/invoices were procured from the supplier through Belgium Customs is factually incorrect as the supplier in his correspondence to the DRI Bangalore Zonal Unit had clarified that all payments from the three importers were made by bank transfer only. Further M/s NPT have also brought on record a letter from the supplier where they have stated that documents received from Belgium Customs were not issued by their office. This factual aspect has not been rebutted or controverted in the Show Cause Notice. Further we note that value has been redetermined on the basis of procured export declarations/invoices for which we have already rendered detailed findings that these are not admissible documents in terms of Section 139 (ii) of Customs Act. Further all three importers brought on record export declarations in respect of disputed consignments itself which show that the transaction value was correctly declared in all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tendent (AR) has placed reliance on the following judgments in support of his various submissions: (i) TRANSWORLD POLYMERS P LTD VS. CC, NHAVASHEVA 2018 (363) ELT 996 (Tri-Ahmd) (ii) MARTWIN ELECTRONICS VS. CST, AHMEDABAD 2016(331) ELT 85 (Tri-Ahmd) (iii) KONIA TRADING CO. VS. CC, JAIPUR 2006(199) ELT 644 ( Tri-Del) (iv) LAXMI ENTERPRISES VS. CC, NEW DELHI 2018(361) ELT 1054 ( Tri-Del) (v) LAXMI ENTERPRISES VS. CC NEW DELHI 2020(372) ELT A33(SC) (vi) SRI KRISHNA SALES CORPORATION VS. CC, MUMBAI 2017-TIOL-3650-CESTAT-MUM- (vii) NATIONAL LAMINATION INDUSTRIES VS. CC(SEA), CHENNAI 2016(331) ELT 18 (SC) (viii) UNIVERSAL ABRASIVES & MINERAL P LTD VS. CC, CHENNAI 2010(258) ELT 382(Tri-Chennai) (ix) TELESTAR TRAVELS P LTD VS. SPECIAL DIRECTOR OF ENFORCEMENT 2013(289) ELT 3 (SC) In this regard, we find that these judgments have no applicability to the facts of the case at hand. In the first case of M/s Transworld Polymers Pvt Ltd, the documents were directly obtained from the supplier M/s Delphi Fibers Italy and there was a statement from the supplier accepting the authenticity of those documents. In the second case of M/s Martwin Electronics, the export declarations wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t these documents are not admissible in evidence in terms of Section 139 (ii) of the Customs Act 1962. 6.17 That the Principal Commissioner has ordered confiscation of 548 MT (523 Rolls) of goods seized from the godown premises of M/s NPT at Chennai. Since the goods were provisionally released on execution of P.D Bond supported by Bank Guarantee of ₹ 11,00,000 (Rupees Eleven Lacs) he has imposed Redemption Fine of ₹ 11,00,000 (Rupees Eleven Lakh Only) in lieu of confiscation under Section 125 of the Customs Act, 1962 and ordered to enforce the Bonds and encash Bank Guarantees towards such Redemption Fine. Since we have already held that M/s NPT had correctly declared the transaction value there is no justification for confiscation of the seized goods. We therefore set aside the Redemption Fine. 6.18 That the Principal Commissioner has also imposed penalties on M/s NPT, M/s SPPL and M/s SIPPL under the Section 114A, 114AA as indicated in the chart in the opening paragraph of this order. Similarly, he also imposed penalties on Sh. Prakash Chand Garg Director of M/s NPT, Sh. Ashish Garg and Sh. Vijay Garg both Directors of M/s SPPL and M/s SIPPL under Section 112A, 114AA ..... X X X X Extracts X X X X X X X X Extracts X X X X
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