9911796707
TMI Blog2024 (10) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... sition of penalty on him. As both the appeals emanate from the same Order-in-Original, both are taken up together for decision by a common order. 2. The facts of the case are that the appellant had imported 129 consignments of Sewing Machinery and parts of various brands through Kolkata port and one consignment of sewing machinery at ICD Tughlakabad, between the years 2012 and 2014. All the Bills of Entry were assessed/ reassessed to duty finally by accepting the transaction value declared by the appellant in the respective Bills of Entry. 2.1. On 01.12.2014, the officers of Directorate of Revenue Intelligence (DRI), Bangalore, searched the business premises of the appellant at Kolkata and seized the import documents relating to the 130 consignments mentioned above. After initial verification of the documents, DRI, Bangalore transferred the documents to DRI, Kolkata for further investigation at their end in the year 2015. After receipt of the documents from DRI, Bangalore, DRI, Kolkata started an independent investigation. On completion of the investigation, a Show Cause Notice dated 15.05.2017 was issued to the appellant proposing to reject the transaction value declared by them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Proforma Invoice relied upon in the impugned order are fake, the appellant submits that the Mail is mentioned as excel sheet, which would be in word format and the alleged enclosure was a photo document which would be in PDF, where no one can write, but there were writings on it. The appellant also submits that the invoice copy would be a photo, which is not in word format, and the emails have no authentication under Section 138C. It is also stated that the officers have not disclosed from the premises where the document was recovered; the interrogating authority had nothing to explain in rebuttal and the ld. adjudicating authority has also not given any finding on this in the impugned order. Accordingly, the appellant submits that the declared value in the Bills of Entry cannot be rejected on the basis of some details mentioned in these documents, which are fake. 3.2. The appellant submits that the ld. adjudicating authority has rejected the transaction value declared by them in the Bills of Entry and confirmed the differential customs duty in the impugned order on the basis of the statement given by one Mr.Abdul Khaleque on 24th December 2014 and the price list tendered by h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not even NIDB data, but fictitious reference to the Bills of Entry without producing it in the course of hearing. Since the Department has not produced any corresponding higher value of contemporaneous imports, the appellant prays for setting aside the demands of duty, interest and penalties confirmed in the impugned order. 3.6. Shri Sanjay Mehta, Partner of the appellant company submits that the ingredients required for imposing penalty under Section 114AA of the Customs Act are not existing in this case and hence the penalty imposed on him is liable to be set aside. 4. The Ld. Authorized Representative of the Revenue reiterated the findings in the impugned order. 5. Heard both sides and perused the appeal documents. 6. We find that the transaction value declared by the appellant in the 130 Bills of Entry were rejected by the Ld. Commissioner on the basis of two documents, namely, an email found with one Mr. Mahesh Agarwal at Bangalore and a proforma invoice issued in the name of Jaiswal Trading Company. For ready reference, the said documents are extracted below : 6.1. We observe that the appellant submitted that the email extracted above is a fake one. In support of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they never interacted with Mr. Abdul Khaleque and did not even know that he was manager of M/s Focus Garments. We observe that Mr. Abdul Khaleque did not file any document showing that he was any way associated with M/s Focus Garments and gave a price list to DRI which was neither printed nor authenticated but was typed on a plain sheet of paper. Thus, we observe that the said Price list is not a reliable document and based on such a document, the transaction value cannot be rejected. We further observe that the items mentioned in the price list price list are also not comparable to the imports of the appellant. Thus, we hold that on the basis of the statement and price list typed on a plain sheet the transaction value declared by the appellant in the 130 Bills of entry cannot be rejected. We observe that this view is supported by the decision of the Hon'ble Supreme Court in the case of Eicher Tractors P. ltd. reported in 122 ELT page 321. The relevant part of the said decision is reproduced below : " 22. In the case before us, it is not alleged that the appellant has mis-declared the price actually paid. Nor was there a mis-description of the goods imported as was the case in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said decision is reproduced below: "7. Applying the above tests to the facts of the present case, we find that there is no evidence from the side of the Department showing contemporaneous imports at higher price. On the contrary, the respondent importer has relied upon contemporaneous imports from the same supplier, namely, M/s. Pearl Industrial Company, Hong Kong, which indicates comparable prices of like goods during the same period of importation. This evidence has not been rebutted by the Department. Further, in the present case, the Department has relied upon export declaration made by the foreign supplier in Hong Kong. In this connection, we find that letters were addressed by the Department to the Indian Commission which, in turn, requested detailed investigations to be carried out by Hong Kong Customs Department. The Indian Commission has forwarded the export declarations in original to the Customs Department in India. One such letter is dated 19-9-1996. In the present case, the importer has alleged that the original declarations were with the Department. That certain portions of the originals were not shown to the importer despite the importer calling upon the adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port made by other importers" 6.7. Thus, we observe that the ld. adjudicating authority has not taken into account the evidences submitted by the appellant on contemporaneous imports with lower value. Also, he has not furnished the details of the Bills of Entry where higher value has been adopted. 6.8. We observe that the ld. adjudicating authority has also not followed the valuation rules in a systemic mannerto re-determine the Assessable value, by stating that it will be in conflict with the intelligence about the rampant under-invoicing as alleged in paragraph 14.4 of the notice. In the impugned order, it has been admitted that none of the Rules from Valuation Rule 4 to Rule 8 are applicable and valuation has been done under Rule 9 of the valuation rules. We observe that in the impugned order, valuation was disputed in the manner and the procedure adopted to re-determine the value is unknown to law. We observe that the machine with only head were compared with certain imports where head was not imported, but some other parts were imported, and by application of Rule 9, the prices were sought to be adjusted even when there is no comparability of the goods in part , model, valu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
