9911796707
TMI Blog2024 (9) TMI 1363X X X X Extracts X X X X X X X X Extracts X X X X ..... s power to examine persons. For these reasons, the email is admissible evidence. The other evidence relied is the statement of Shri Sheetal K. Jain (appellant active partner) recorded by Department. In his statement, it is clearly deposed by him that after negotiations, they had agreed to supply Ginger Beer @ 4.55 GBP per case. It is also stated that the appellant had made part payment and the balance amount of 99.61 is still to be paid. This clearly shows that the declared value is incorrect - It is incumbent upon the appellant to come forward with an explanation in the reply as to why they have paid an amount over and above than that has been mentioned in the invoice. The appellant has not been able to put forward any explanation in regard to higher amount paid by them. The strong inference that can be drawn from the facts is that the value declared in the Bill of Entry is not correct transaction value. The department has therefore correctly rejected the transaction value and enhanced the value on the basis of e-mail - the order of enhancement of value and the confirmation of differential duty is upheld. The rejection of declared value and enhancement of value is upheld - The red ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) who upheld the order passed by the adjudicating authority. Aggrieved by such order, the appellant is now before the Tribunal. 3. The Ld. Counsel Shri A.K. Jayaraj appeared and argued for the appellant. It is submitted that the Bill of Entry was filed declaring the value as USD 3240 and @ USD 1.35 per carton. After filing the Bill of Entry, the goods were subjected to examination. Later, a statement was taken from the appellant. The D.R.I. officers had threatened the appellant to give a statement as per their case and only due to threats, the appellant had stated that the goods were undervalued. Later, the appellant has retracted the said statement. The said goods were tested by Central Food Laboratory, Pune and report dt. 26.07.2011 confirmed that the sample conforms to the standards of Ginger Beer as per PFA Rules, 1955. 3.1 The appellant had furnished the manufacturer s invoice to prove the genuineness of the declared value. The Ld. Counsel vehemently argued that the declared value has been rejected on the basis of an e-mail taken from the computer. The Department has not complied with the provisions under Section 138C of Customs Act, 1962 and therefore the document in the natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... request made by the Departmental officers, the Appellant (Shri Sheetal K. Jain) had opened his e-mail account and downloaded 13 documents including the e-mail. The said document having been downloaded by the appellant himself and handed over to the Department, there is no necessity for complying with Section 138C of Customs Act, 1962. It is not a situation where the computer was seized from the premises and the documents were retrieved by the department later. So also, the documents were not retrieved by the department at the premises. In such situation, the appellant cannot object to the reliance placed on the documents. The documents are fully admissible in evidence as these are downloaded by the appellant and then handed over to the Department. It is emphasized by the Ld. A.R that it is not an e-mail sent by a third party. It is an e-mail correspondence by the appellant to the foreign supplier and would therefore be admissible in evidence as the appellant himself has downloaded the e-mail and given the printouts to the Department. 4.2 In regard to the argument put forward by the Ld. Counsel relying upon the statement of Shri Sheetal K. Jain recorded by the department, it was sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the e-mail. The differential duty payable is Rs. 2,97,256/. The undervaluation would not have come to light but for the interference by the Departmental officers. The redemption fine and penalties imposed are therefore correct. It is submitted that as the appellant has manipulated commercial invoice by undervaluing the goods, the penalty imposed under Section 114A is legal and proper. Ld. A.R prayed that the appeal may be dismissed. 5. Heard both sides. 6. The issue to be considered is whether the rejection of transaction value and enhancement of value is legal and proper. So also, whether the redemption and penalty imposed are sustainable. 7. From the facts narrated above, it can be seen that the appellant has declared the value as USD 3240 and the department enhanced the value to GBP 10920 as under Rule 4 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. Department has placed reliance on the e-mail and the statement of Shri Sheetal K. Jain for rejection of transaction value and enhancement of value. The main contention of the Ld. Counsel for the appellant is that e-mail cannot be relied as an evidence for the reason that the Department has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplied) 8. From the above, it can be seen that the e-mail was not retrieved by the Department in the process of investigation. It was downloaded and handed over to the officers by the appellant himself. This fact has not been countered by the appellant in the reply to the SCN. As correctly pointed out by the Ld. A.R, the appellant has not stated in their reply to the SCN that the e-mail was retrieved by the department from the computer used by him. So also, it is not stated that the computer was not used by the appellant. Actually, there is no whisper replying to the allegation in the SCN that the appellant had opened his e-mail ID and downloaded 13 documents including the e-mail. This being so, the appellant had handed over the e-mail to the Department as part of the investigation. If there was any grievance for the appellant, he ought to have sent a letter or objection to the department stating that the email was downloaded on threat or duress. No such letter has been sent to the department. No such averment has been made in the reply to the SCN. Chapter XIII (Sections 100 to 110A of Customs Act, 1962) deals with the powers of officers for search, seizure and arrest. Section 110A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd with an explanation in the reply as to why they have paid an amount over and above than that has been mentioned in the invoice. The appellant has not been able to put forward any explanation in regard to higher amount paid by them. The strong inference that can be drawn from the facts is that the value declared in the Bill of Entry is not correct transaction value. The department has therefore correctly rejected the transaction value and enhanced the value on the basis of e-mail. We do not find any grounds to interfere with the decision taken by the adjudicating authority in rejecting the transaction value and enhancing the value. Thus the order of enhancement of value and the confirmation of differential duty is upheld. 10. The Ld. Counsel has submitted that the redemption fine and penalty imposed are excessive. For a differential duty amount of Rs. 2,97,256/-, the redemption fine imposed is Rs. 3,50,000/-. We find that the said amount is excessively high. We reduce the redemption fine to Rs. 1,00,000/- (Rupees One lakh only). So also, the penalty imposed by the adjudicating authority is Rs. 3,00,000/-. Taking a lenient view, we reduce the penalty to Rs. 1,00,000/- (Rupees One ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
