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TMI Blog2022 (8) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... the price shown in the invoice submitted. It is found that the value of entire imports over a period of time cannot be arrived at on the basis of a single invoice and that as long as any differential payment is not evidenced, the value declared cannot be rejected. In the case of M/S. GLOBAL INDUSTRIES VERSUS THE COMMISSIONER OF CUSTOMS COCHIN. [ 2011 (2) TMI 742 - CESTAT BANGALORE] it was held that in the absence of data relating to the imports of goods of same quality, quantity and commercial level with higher transaction value, contemporaneous import cannot be accepted. In this instant case, Revenue has not placed any data to evidence contemporaneous imports; rather the Adjudicating Authority found that there are no contemporaneous imports. The findings of the commissioner are correct. Antecedents cannot be an evidence for the alleged undervaluation of the goods. At best antecedents may be a reason for creating a suspicion and be a reason for causing an enquiry or Investigation. Mere propensity of the respondent is not enough proof of undervaluation - the antecedents of an importer or their propensity to violations cannot be in itself an evidence prove a contraventio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Act, 1962. The proceedings initiated by the said show cause notice were drafted by Commissioner of Customs vide order dated 24.08.2020. 2. Committee of Chief Commissioners reviewed the above order under the provisions of Section 129D(1) of Customs Act, 1962 and passed the Review Order No. 04/2021 dated 30.12.2020 and accordingly, an appeal have been filed against the impugned order on the grounds of appeal mentioned therein. The grounds as summarized are that the adjudicating authority failed to appreciate/overlooked the provisions of Rules 12, 3 and 5 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 and that the adjudicating authority erred in rejecting the parallel invoice retrieved during the investigation; did not appreciate the significance of data pertaining to contemporaneous imports by others and the domestic sales of the respondents; failed to identify the earlier case of under invoicing by the respondents; failed to appreciate the inconsistencies in the statement of the proprietor; wrongly relied upon Supreme Court judgment in the case of Century Metal Recycling Pvt. Ltd and ignored the judgment in the case of Bhoor Mull. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commodity, specifications, slots, teeth length, raw material, quantity in units and weight; despite all these matching data, the Adjudicating authority accepted importer's plea that invoice with lower value, at a discounted value, was genuine; no details/evidence of such discount was put forth; the Adjudicating authority also erred as the invoice for lower value was unsigned and unstamped, whereas the invoice for higher value was both signed and stamped by supplier/consignor; the unsigned and unstamped invoice with lower value but with same invoice number and date does not declare itself to be either a reissue in suppression of higher value invoice, does not present itself to be an invoice with a discount (of almost 50 per cent) on account of any factor let alone the terms of payment; the Adjudicating authority erred by not considering the parallel invoice as evidence of presentation of 'the fraudulent or manipulated document', a reason specifically illustrated in the sub clause (f) of Explanation 1 (iii) to Rule 12 of the CVR 2007. 3.2. He submits that the Adjudicating authority failed to appreciate the significance of illustration derived in the SCN from domestic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the price list said to be effective from 1st March 2018, was sans forwarding e-mail or correspondence showing prior agreeing to continue with earlier price. Learned Authorized Representative submits that these aspects suggest that the declared import prices subsequent to the period (15.07.2008 to 31.12.2012) settled by Hon'ble Settlement Commission were fixed and not as truthful transaction value; in admitting that the prices had already gone up, but they did not buy at increased prices shows that under-invoicing is accepted/ admitted by the importer more so, when there is no agreement; the Adjudicating authority erred by simplistically accepting the un- substantiated averment of importer; 3.5. Learned Authorized Representative submits that the material presented in the SCN is sufficient to hold that it shall be deemed that transaction value declared by M/s. Granite India is not determinable in terms of Rule 3(1) of CVR 2007 and hence was liable to be rejected; the contemporaneous goods being not similar with the imported goods, the Adjudicating authority erred in the dealing the matter by saying that the quality and quantum were different; the Adjudicating authority did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sers i.e. Stones Shippers Ltd., Shri Ram Granite and Shambhav Rocks. He submits that the learned Commissioner has analyzed the imports made by the said three actual users (in Para 5.7 to 5.42 of the OIO) and interalia, held that The quantities imported by the said three importers are meager when compared to bulk quantities imported by the Respondent; therefore, the price of the Respondent s goods cannot be enhanced by comparison with the import price of the said three importers; While the said actual users imported only 2 to 3 consignments in a year(less than 5 MT in a year), the Respondents imports were of 20 to 25 MT in each consignment (500 to 1000 MT a year);therefore, the prices cannot be a compared for enhancement; Also there was difference in the quality of the goods imported by the said actual users and the quality of goods imported by the Respondent; quality of the goods imported by the said actual users was superior to that imported by the Respondent; description of goods given in the Bills of Entry filed by Stone Shippers Ltd mentioned the goods to be of A quality, which was not the case with the Respondent s goods; Supplier had by letter dated 20.02.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed on record, data of contemporary imports by other importers, which shows imports at prices which are less than or equal to the prices at which the Respondents have imported the said goods; Rule 4 (3) of the Customs Valuation Rules 2007, clearly provides that if more than one transaction value of identical goods is found, the lowest such value shall be used to determine the value of imported goods; therefore, when the data of contemporary imports shows imports at prices lower than the price of the Respondent s goods, the question of enhancing the value of the Respondent s goods does not arise at all. 9. Learned counsel lastly submits that the Commissioner (Paras 5.14 and 5.15 of the OIO) rightly discarded the statement of a private person, Mr. Vishal Vora, who had nothing to do with the present imports and the alleged We-Chat conversations which he claimed to have had with the foreign supplier, as being inadmissible in evidence; such alleged We-chat conversations of a private person unconnected to the imports in the present case have no authenticity and have no evidentiary value at all. He submits that on the contrary, the respondents, vide submissions dated 16.07.2018 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir willingness to provide invoice by showing lower value to the extent of 50-60% and receiving remaining amount through non-banking channels; the noticee has been selling the imported goods at higher prices in the focal market and has received part of payment in cash. 11. Regarding the Evidence on the basis of Parallel invoices, we find that the Learned Commissioner enumerated differences between these invoices and held that they are not comparable. Learned Commissioner pertinently finds that the second invoice bears details of Bank, Swift code, Account number of the supplier etc, which are absent in first invoice; second invoice is the actual invoice and the first invoice looks like a Performa invoice; investigation could not find any evidence that the actual payment was made on the basis of first invoice; respondents imported only 1-2 shipments from this supplier; entire SCN is on the supplies from Mis Fujan Quanzhou Wanglong Stone Co Ltd., China and Fujian Wanlong Diamond Tools, Co Ltd China; investigation could not get any single parallel invoices in respect of imports from them; could not produce not even a single evidence of payments made over and above the price sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or cobalt bond faster cutting tools of longer life span than massive market product using sometimes iron bonds; some commercial invoices of Ms. Shree Ram Granites are also unsigned. 13. The respondents submit that they are the major buyers in India for the suppliers M/s. Fujian Quanzhou Wanglong Stone Co Ltd., China and Fujian Wanlong Diamond Tools., Co Ltd China and their volumes of imports are not comparable to other importers; they are major buyers for these suppliers and account for nearly 85% of the total import from these suppliers in JNCH. We find that these three importers imported very less quantity compared to the noticee; M/s. Shree Ram granites Ltd and Ms Stone shippers Ltd have imported only 5-6 consignments each during the entire period from these suppliers. In addition to the volumes, one needs to take in to account the quality of goods also. It was submitted that there were also different types of bond in same size of segment mainly iron bond, copper bond with silicon cobalt bond etc, the different bond with different grade of raw material would affect the cost and price. Commissioner observed that PMI test report dated 16.02.2018 given by M/s Dinesh Metal Test ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellants were brushed aside stating that the discounts were not reflected in the invoice and that there were inconsistencies in the statements of Shri Agarwal. In view of the discussion above and the judgments cited, we find no case has been made for comparing the imports of the respondents with that of others and re-determine the value accordingly. 17. Regarding the reliance on the case of, undervaluation of segments and saw blanks against the respondents, booked in 2013 by DRI, Bangalore against the respondent, learned commissioner finds that- the SCN placed reliance on the said settlement order with a purpose to establish that Noticee had engaged in under valuation in past also; but there is no attempt made in the SCN for the present case by establishing the identical or similar nature of the goods of the other importers whose invoices have been referenced with that of the noticee; in the absence of any such thing the reference to the previous DRI case can only to emphasize the point that importer's antecedent of undervaluing the goods; but that is not going to be an evidence to establish undervaluation in the present case; even if it is for claiming that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be part of the evidence while issuing a Show Cause Notice. If a private person approaches the agencies as an informer giving information the same may be used following the standard operating procedures. Even then understandably, the sanctity and the secrecy of the informant become paramount. Be it so, using the service of a private person, engaging to have a chat with the supposedly with the supplier, is a dangerous trend. In the competitive market, there would be no dearth of such persons coming forth and the department would not find number of cases wanting. We are of the considered opinion that such an evidence, being totally unconnected and not relevant cannot be used to sustain a case of under valuation. 21. In view of the above, we do not find any reason whatsoever, so as to interfere with the order of the learned Commissioner. We find as per the discussions above, Revenue has not made out any case against the impugned order. We also find that the appeal filed by the Revenue is devoid of any merit and hence, is liable to be rejected. 22. In the result, appeal C/85141/2021 is dismissed. (Order pronounced in the open court on 29.07.2022) - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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