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TMI Blog2024 (5) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer senior to proper officer would amount to granting of deemed extension. We observe that the proviso to Section 28(9) clearly stipulates that in case the adjudication is not done within the time limit stipulated, then the Officer senior in rank to the Proper Officer must grant extension in such cases. Even if an Officer senior to the Proper Officer adjudicates the case, a formal extension must be obtained as mandated in Section 28(9) of the Act, which has not been done in the instant case. Accordingly, we find merit in the contention of the appellants that the impugned order is liable to be set aside on this ground alone. Differential Anti-Dumping Duty - Since the letter dated 29.03.2019 contains information on invoices issued in the months of September 2019 and November 2019, we agree with the contention raised by the appellants that there is suspicion about the genuineness and veracity of the said letter. Accordingly, we hold that the demand cannot be raised on the basis of the letter dated 29.03.2019 or the documents said to have been attached along with the said letter. When there is a confirmation about the genuineness of invoices from the representative of the manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order on account of undervaluation is not sustainable and hence we set aside the same. There is no evidence available on the record to reject the genuineness of the invoices submitted by the appellants. The value declared by the importers in other Bills-of-Entry are not comparable as the quantity of goods or quality of goods imported cannot be ascertained to conclude as to whether the comparable import qualifies as identical goods or not. Accordingly, we hold that the transaction value declared by other importers cannot be treated as the correct transaction value in respect of the goods imported by the appellants herein. The transaction value declared by the appellants cannot be rejected on the basis of a mere allegation by a third-party on the ground that the format of the invoice is not similar to theirs or other invoices issued by the manufacturer. Hence, we hold that the transaction value declared by the appellants in respect of the 26 Bills-of-Entry cannot be rejected and the assessable value re-determined by the Department in the impugned order is not based on any documentary evidence. Thus, we hold that the assessable values declared by the appellants in the 26 Bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Changzhou Co. Ltd . attracts antidumping duty of 0.50 US$ per M.T. and goods supplied by Zhejiang Jainyon Flax Co. Ltd. attracts Anti-Dumping Duty of 2.42 US $ per M.T. and for all others rate of Anti-Dumping Duty is 4.883 US$ per M.T. 4. Directorate of Revenue Intelligence, Pune initiated an investigation against all the three appellants on the basis of the intelligence that the appellants have undervalued the Flax yarn imported by them and not paid appropriate Anti-Dumping Duty. On the basis the investigation, a Show Cause Notice dated 22.11.2021 under Section 28(4) of the Customs Act, 1962 was issued to all the appellants demanding Anti-Dumping Duty and Customs duty aggregating to Rs. 2.65 Crores along with interest and penalty. 5. The subject Show Cause Notice altogether covers 26 bills of entry out of which 8 bills of entry relate to M/s. Aahana Commerce Pvt. Ltd., 9 bills of entry relate to Enterprise International Ltd. and 9 bills of entry relate to M/s. Chemsilk Commerce Pvt. Ltd. In respect of all the 26 Bills of Entry, the assessable values declared by the appellants were rejected and the values were re-determined as per the values of 'similar goods' available i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Show cause Notice e-mails were relied upon without being certified under Section 65 of the Indian Evidence Act and Information Technology Act, 2000, which mandatorily required certification of documents. Similar provisions are also embodied under Section 138C of the Customs Act, 1962. 7.1. The appellant also raised another preliminary objection that the Notice was not decided within the time-period prescribed in Section 28(9) of the Customs Act and there was no extension granted by any Officer senior in rank to the Proper Officer as mandated in Section 28(9) of the Customs Act. Accordingly, he submits that the impugned order is not maintainable and liable to be set aside on this ground alone. 8. The Appellants submits that differential Anti-Dumping Duty (hereinafter referred to as ADD ) has been demanded in respect of 7 Bills of Entry out of which 4 Bills of Entry were filed by M/s. Chemsilk Commerce Pvt. Ltd. and 3 Bills of Entry were filed by Aahana Commerce Pvt. Ltd. As per Notification 53/2018 -Customs (ADD) dated 18.10.2018, Anti-Dumping duty is payable on flax yarn of below 70 Lea, when originating in or exported from China. As per the above said notification ADD @ USD 0.50/k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have placed this suspicion before the adjudicating authority, but he did not contradict their submissions which amounts to admission by the adjudicating authority. It is a settled principal of law that facts pleaded but not denied amounts to admission. The presumption under the Commercial Document Evidence Act, 1939 could not be rebutted by non-admissible and hearsay evidences of e-mail, etc. which were neither true nor authenticated. The Bills of Lading are certified by the competent authority wherein it has been categorically stated that the goods were of Chinese origin manufactured by Tung Ga. They have filed the Invoices issued by Tung Ga along with the Bills of Entry and paid appropriate ADD @0.50 USD/Kg. 8.3 The appellants submit that they questioned the veracity of the letter said to have been written by the manufacturer Tung Ga. During the course of personal hearing, they had pointed out to the ld. adjudicating authority that the emails relied upon are suspicious documents and there is no certification so as to make it admissible and there are glaring indications that emails are fabricated. They pointed out certain discrepancies in the contents of the letter and claimed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ription of goods (paragraph 29 of the order); the description of the goods alone would not be sufficient for comparison; without any contemporaneous import of similar goods the transaction value cannot be rejected. 9.3. The appellants further submits that they had submitted import data where the imports have been made by other importers at the same and near rate; the ld. adjudicating authority rejected those data by holding that supplier s name is not mentioned therein but the learned adjudicating authority has applied the value wherein only the description matches. Thus, the ld. adjudicating authority has erred in not applying the same yardstick which he applied for confirming the demands, which makes the adjudication order perverse. 9.4. The appellants submit that the documents filed by them such as Bill of Lading and certificate of origin which came from Tung Ga were not disputed in spite of various correspondence made by the DRI in this connection; the ledger of Tung Ga was seized at the appellants office premises and there is no dispute on such ledger; the indenter has sent e-mail certifying that the goods had been received from Tung Ga; the mail which is being relied upon by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) of sub-section (1); (b) within one year from the date of notice, in respect of cases falling under sub-section (4). Provided that where the proper officer fails to so determine within the specified period, any officer senior in rank to the proper officer may, having regard to the circumstances under which the proper officer was prevented from determining the amount of duty or interest under sub-section (8), extend the period specified in clause (a) to a further period of six months and the period specified in clause (b) to a further period of one year : Provided further that where the proper officer fails to determine within such extended period, such proceeding shall be deemed to have concluded as if no notice had been issued. 12.3. From the above, we observe that with effect from 29.03.2018, a proviso to Section 28(9) has been inserted mandating that the Proper Officer is required to get an extension from the Officer superior to him in rank if the Show Cause Notice could not be adjudicated within the period stipulated in the said Section. Admittedly, in this case, the Show Cause Notice was issued on 22.11.2021 and the said Notice was not adjudicated within the time-limit spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, ADD has been demanded in respect of 7 Bills-of-Entry. We observe that out of these 7 Bills-of-Entry, the appellants claimed that they imported Flax Yarn from Tung Ga in respect of 5 Bills-of-Entry and in respect of the other 2 Bills-of-Entry, they imported Flax Yarn from Zhejiang. 15. The Department has demanded ADD at the rate of 4.83 USD per kg. in respect of the 5 Bills-of-Entry filed where the goods have been claimed to be imported from Tung Ga, on the allegation that the letter dated 29.03.2019 was written by the manufacturers to DRI, Pune informing that they have not made any exports to India after imposition of ADD vide the Notification No. 53/2018. The said letter further alleged that some importers have used deceptively similar invoices issued by Tung Ga and claimed ADD at 0.50 USD per kg. On the basis of this letter, the ld. adjudicating authority has confirmed the differential ADD in respect of the 5 Bills-of-Entry where the appellants claimed that the goods had been imported from Tung Ga. 15.1. In this regard, the appellants submission is that the letter dated 29.03.2019 is not genuine and thus the documents said to have been attached to the said letter cannot be re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Changzhou Co. Ltd. . They made payments to Tung Ga, which were used for discharge of Bills-of-Lading. Their shipping company would deliver the goods on the instruction of Tung Ga and without the release order from Tung Ga, delivery order of the goods could not have been issued. It was contended that there is no evidence from the shipping company that delivery instructions were not given by Tung Ga in this regard; the ld. adjudicating authority has not given any finding regarding the above said submissions made by them. We also find that the manufacturer s invoice submitted by the appellants have not been proved to be fake. 15.8. The appellants have cited another instance of discrepancy to establish that the mail relied upon in the impugned order was fake and the invoice issued to them was genuine. 15.9. They referred to a email dated 05.07.2019 sent by the DRI to Shri Siddharth Mehta, Partner of Texventures LLP., who is the authorized representative of Tung Ga in India. The said email is reproduced below: - 15.10. In reply to the said letter, Mr. Siddharth Mehta has given a reply vide his email dated 08.07.2019 in which the company has affirmed that the invoices submitted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in respect of all the 7 Bills of Entry are not sustainable and accordingly, we set aside the same. Since the demand of differential ADD is not sustainable, the question of demanding interest and imposing penalty on the same does not arise. Issue (2): Whether the values declared by the appellants in all the 26 Bills-of-Entry is liable to be rejected and the values re-determined by the ld. adjudicating authority in the impugned order based on the price available of similar goods in the NIDB data is acceptable in the facts and circumstances of the case or not. 18. Regarding the allegation of undervaluation in the impugned order, we observe that the undervaluation has been alleged in respect of all the 26 Bills-of-Entry filed by the appellants. The appellants imported Flax Yarn and filed the shipping bills for home consumption. The Bills-of-Entry were assessed to duty and the appellants discharged the duty as per the assessment order. There were no objections raised about the value declared by the appellants at the time of assessment of the said Bills-of-Entry. The Department has not rejected the assessable value declared by them in the Bills-of-Entry. 18.1. We observe that the value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared by the importers in other Bills-of-Entry are not comparable as the quantity of goods or quality of goods imported cannot be ascertained to conclude as to whether the comparable import qualifies as identical goods or not. 18.7. Accordingly, we hold that the transaction value declared by other importers cannot be treated as the correct transaction value in respect of the goods imported by the appellants herein .The transaction value declared by the appellants cannot be rejected on the basis of a mere allegation by a third-party on the ground that the format of the invoice is not similar to theirs or other invoices issued by the manufacturer. Hence, we hold that the transaction value declared by the appellants in respect of the 26 Bills-of-Entry cannot be rejected and the assessable value re-determined by the Department in the impugned order is not based on any documentary evidence. 19. This view has been held by the Tribunal in the case of Commissioner of Customs, Chennai v. Sree Rajendra Textiles [2023 (386) E.L.T. 597 (Tri. Chennai)], wherein it was observed as under: - 17. On perusal of the order of the lower adjudicating authority, it is clear that reliance is placed on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ld. Authorised Representative and Ld. Advocate have referred to many judicial decisions as detailed in the above paragraphs. But, the facts obtaining in these appeals are clearly distinguishable. There is nothing illegal or improper in suspecting the declared values of imported silk by the appellant. But, under valuation has not been conclusively proved by the Revenue. We agree with the decision of the lower appellate authority that there was no clinching evidence for rejecting the transaction values declared. In these appeals the assessing authority has enhanced the declared values of the impugned goods on the basis of contemporaneous imports pertaining to some other importers of identical/similar goods during the relevant period. At the same time, the importer also has given the details of various Bills of Entry evidencing imports by other importers like Mahalakshmi Silk Trading, Kaveri Silk Jute P. Ltd., at around the similar prices which were accepted and cleared by the Department. In the absence of giving all the details relating to contemporaneous imports of goods in respect of quantity, quality, type, country of origin whether of contract or not etc., which are having a be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals), I have not come across any clear finding as to which of the above circumstances existed in relation to the goods imported by the appellants. Though the impugned order says that the subject import falls within the exception contained in clause (b) above, there is no discussion on the point. In other words, ld. Commissioner (Appeals) has not established that any of the aforesaid exceptions/special circumstances did exist in relation to the subject import. Consequently, one has got to fall back on the transaction value of the imported goods. This, I think, will be in keeping with Rule 4 read with Section 14(1) as interpreted by the Apex Court in the case of Eicher Tractors (supra). There is no dispute of the fact that the subject goods were supplied to the appellants at a price agreed between them and their supplier. Again, the Revenue has no case that anything in excess of the agreed price was paid or payable by the appellants to their supplier under the contract, nor is it the case of the Revenue that the said price was influenced by any consideration other than commercial. In such circumstances, there is no justification for rejecting the transaction value of the goods. Ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal is allowed. 21. In view of the discussions above and by relying on the decisions cited above, we hold that the assessable values declared by the appellants in the 26 Bills of Entry cannot be rejected. Accordingly, we hold that the differential duty confirmed on the basis of the re-determined assessable value is not sustainable. Issue (3): Whether or not the penalty imposed on the appellants is sustainable. 22. We observe that penalties have been imposed on the appellant companies on the ground that they have not paid appropriate ADD and short paid the customs duty on account of undervaluation. In view of the discussions above, it has been held that the demand of differential ADD and the demand of deferential customs duty on account of undervaluation is not sustainable. Since the demand of ADD and Differential customs duty is not sustainable, the question of demanding interest or imposing penalty on the appellant importers does not arise. 22.1. Regarding imposition of penalty on the common Director Mr. Aditya Sarda, we observe that his involvement in the alleged offence was established on the basis of the statement given by him on 9th July, 2019. We observe that he has retr ..... 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