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TMI Blog2022 (2) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... egation and evidences on mere technical grounds. The argument by the adjudicating authority is not only specious but also not legally tenable. The allegations, if any, have to be proved by the Revenue authorities alleging the same. It is incorrect to say that the appellant has to disprove the allegations with cogent evidence. Such an argument runs against the settled position of law and as such the same is not acceptable. The Courts and Tribunals have consistently held that proforma invoices cannot be evidence, at least in themselves. What is material is the transaction value. Revenue is required to prove with evidence that the payments over and above, the price reflected in commercial invoices are actually made. In the instant case the same is absent - the adjudicating authority himself observes that there is a difference in the particulars mentioned in proforma invoice, and the invoices submitted along with bills of entry. In the instant case, the investigation has revealed the actual transaction value based on cogent evidences. Therefore, the actual price taken being the transaction value under Section 14 of the Customs Act, 1962, we find that the observations of the Lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed penalty of ₹ 5 lakhs under section 112 of the Customs Act,1962 on M/s. Trade well(importer-appellant) and ₹ 2 lakhs on Pankaj Jain Authorized Person of the importer (appellant). Hence, these appeals C/50019/2019 and 50020/2019 filed by the company and the proprietor Shri Pankaj Jain, respectively. 2. Ms. Nisha Bineesh, Learned Counsel for the appellants, submits that the lower authority has relied on the following, in order to allege mis-declaration of the total number of 298 imported paper cup machines and blankets. (i). two Proforma invoices having the same number with different descriptions without seal or signature of the importer, supplier nor the Appellant. Also has not been co related with the Bills of Entry, (ii).8 blank papers, (iii). e-mails alleged to have been retrieved from a computer without observing the procedure under Section 138C of Customs Act 1962, and (iv). retracted statements of persons who were neither examined, not even produced for cross examination, nor made co noticees. The statements were not substantiated by corroborative evidence. 3. Learned Counsel submits also that it was alleged that the Appellant has declared im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urce is also not explained; recovery of such mobile is not mentioned in any of the panchanama or statements; when the very genuineness of the mobile phone is in dispute, any information alleged to have been retrieved from it has no evidentiary value, more so when a serious allegation like mis-declaration is alleged; moreover, the data said to have been contained in the phone was not retrieved without following the procedures as required under Section 138C of the Customs Act. 6. Learned Counsel submits that no evidence to prove transaction of amount over and above the declared rate has been put forth; it is settled law that unless and until no remittance of money is proved, undervaluation cannot be established. She also submits that Customs Declaration of three Freight Forwarders cannot be relied upon as they lack the seal or signature of the foreign supplier or the seal of the Customs; they were not procured through the Consulate; they are rather private documents and the person who executed the same was also not cross examined. Relies on ruling in Kainya Associates Pvt. Ltd. Vs. CC (import, Mumbai), 2006 (204) ELT 72 (Tri- Mumbai) and in CC, Bombay vs. East Punjab Traders, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the second Proforma invoice No.DB-20120607 / 07.06.2012 was recovered during search of the residence of Shri Raghuveer Swami, an associate of Shri Pankaj Jain during the concerned period, on 31.03.2016 under Panchanama; he admitted the fact of importing the 4 machines mentioned in the said Proforma invoice at the rates mentioned therein; adjudication authority has discussed in detail both the relevance and existence of Proforma invoices; submissions made by the appellant are false and baseless; investigation clearly established that the machines declared as TW-L12 were actually DB-L12 and the same were mis-declared to facilitate the undervaluation; Proforma Invoice no. DB 2012319 05.05.2012 was related to imports effected vide Bill of Entry No.7362395/11.07.2012, as the Commercial invoice had same invoice no. as DB2012319 .Case against M/s.Tradewell was booked by the DRI in December 2015; DRI has never conducted the valuation of the goods (paper cup machines) through Shri Dwarika P. Gupta, Chartered Engineer; it appears that some fabricated documents have been submitted by the appellant. (ii). The Samsung 4G LTE phone was submitted by Shri Pankaj Jain voluntarily during rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he undervaluation paid the differential duty along with interest and penalty; being an associate of Pankaj Jain and being in similar trade, he was competent to give reliable statement. (viii). 10 customs declarations had been received by the freight forwarding agencies from shippers in China via email and the same has been submitted by the representatives of the freight forwarders under Section 108 of the Customs Act, 1962; learned counsel of the appellant has failed to submit any convincing reason why these freight forwarding agencies who were working for the importer would submit any fake and concocted documents while they were working for the importer; when the supplier was hand in gloves with the appellants, it was not possible for DRI to get these documents from them, particularly when they are based in China; Freight forwarding agencies were also working for the importer had a key role in the whole import; any document voluntarily submitted by them has equal evidential value as if they were submitted by the supplier; details mentioned in the customs declarations were cross matched with imports and the investigation has been able to pin point the relevant BOFs having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entry No.7741855 dated 23.08.2012.Learned Counsel for the appellant have argued that on comparison of the proforma invoices recovered during the searches, with the commercial invoice supplied along with Bills of Entry, are not matching and there is a difference in the models and the same was not established by the department, and that the department has simply alleged that the appellant has declared imported paper cup machines as TW-L12 instead of DBL-12 model. Ld. Counsel for the appellant submits that the proforma invoice cannot be the basis for redetermination of value of imported goods, especially in the absence of their correlation with Bills of Entry, seal/signature of the noticee or the supplier. Ongoing through the impugned order, we find that Ld. Adjudicating authority has observed in para 7.5.5 of the impugned order, as follows: Interestingly, all these details including the model number of the machines, were missing from the imported commercial invoice bearing the same number as filed along with Bill of Entry No.7362395 dt. 11.07.2012. 13. We find that having accepted that there is difference in the models as mentioned in the proforma invoices and the commercia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and circumstances of the case, proforma invoice cannot be a basis for rejection of transaction value, alleging undervaluation. 15. Another set of evidence that the department relies upon - the WhatsApp messages claimed to have been retrieved from a Samsung mobile. The appellants submit that the recovery of the mobile is not recorded in any of the Panchanama or statements, and that the data was not retrieved following due process of law under Section 138C of Customs, Act,1962. The adjudicating authority observes that the said mobile was submitted by Shri Pankaj Jain, during the course of recording of his statement in another case, against M/s Jain and sons, Jaipur; the chats show that Shri Jain was in constant contact with Chinese supplier, especially with Ms Kitty Jiang, Sales Manager of M/s Zhejiang New Debao Machinery Co. Ltd., and Shri Tarun Baid, the alleged Hawala operator; he accepted the use of the said phone and that one of his employees Shri Omprakash Sharma used the mobile for some time and Shri Sharma denied that he used the phone. Also the Learned adjudicating authority does not deny the explanation of the appellant, but avers that Shri Jain submitted his telephon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through official channels, through overseas customs network. We find that documents have not been authenticated by Customs authorities at the respective port of export. Interestingly, Learned Commissioner finds that the importer is correct in pointing out that documents in question have not been directly obtained from a Chinese shipper and that these have not been verified from the Chinese Customs. However, he proceeds to rely upon the documents finding that the freight forwarders confirmed the receipt in his e-mail of customs declaration / commercial invoice / packing list on the basis of declarations given in China, and that the documents have been submitted, well recorded in the statement. Interestingly, improbable dates such as 20:18:13, 15:22:55, 17:14:07, 12:03:47 are seen. We also find that some of the documents relied upon by the department are but blank pages with a signature purportedly to be in Chinese containing no information. Ongoing through the e-mails, as submitted by Ld. Counsel, the format of emails at some places is different from the normal mails sent. These aspects do cast a shadow of doubt on the nature of evidence. 18. Appellants have contended that the go ..... X X X X Extracts X X X X X X X X Extracts X X X X
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