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TMI Blog2024 (11) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant herein is the importer as different from the manufacturer the said rule is held to has wrongly been invoked. The apparent and admitted fact on record remains is that the MRP sticker found present on the product examined at import shed was true as per the declaration in the import documents. The alteration was found at a later stage when the goods were already reached the domestic market to the retailers through the distributor of the appellant. The only basis that origin of both types of MRP stickers i.e. from two different retailers is same has wrongly be held to be an evidence against appellant to have altered those stickers. Thus, we hold that there is no evidence whatsoever on record that the alleged alteration in the MRP was done by the appellant or with the consent and/or knowledge of the appellant. As already brought to notice that there is no evidence for any flow back of money to the appellant. The onus was upon the department to prove that any money has come back to the appellant. On the contrary, the proprietors of the retailers have denied sending any money back to the appellant. We hold that demand has been confirmed on the basis of presumptions and surmises. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mport etc. were also found affixed on the outer side of master carton box as well as on retail packs. A mark of Quantum was also found marked on the master box and retail packs. However, the representative samples of goods were drawn from the consignment and sealed for the further investigation. A market survey in respect of items imported by the importer-appellant was conducted. For this purpose, sample items were purchased from the retailer shops of importer-appellant i.e. M/s. Bajaj Sales Corportation, Shakarpur and M/s. Sky Solutions, Laxmi Nagar, Delhi. On verification of the samples so collected, the MRP mentioned on the sample purchased from these retailers was found to be different (much higher) than the MRP declared by the importer in the respective Bill of Entry for three of the items as follows : Sl. No. Name of the Item MRP declared by the importer in respective Bill of Entry (in Rs.) MRP found mentioned on the sample purchased from open market 1. 222B QHMPL 3D Optical Mouse USB 54 140 2. 7403 W QHMPL Keyboard USB 160 280 3. 7307 QHMPL Multimedia Mini keyboard USB 190 350 1.2 After conducting further investigation and recording the statements of all concerned, a Show Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated are also categorically denied. It is submitted that the correspondences made in the form of emails to Flipkart, Amazon and Snapdeal were made between 29.05.2017 and 26.07.2017. The emails referred were of the year 2016. The department has read the date of printouts of the said email which are of the year 2017. The copies of the emails are impressed upon to be on record. 3. Learned counsel further submitted that during cross examination of M/s. Moon Enterprises, the allegations of revenue stands falsified. It is submitted that the proprietor of the distributor, M/s. Moon Enterprises, namely Ms. Anju Rastogi was not allowed to be cross examined. With these submissions it is impressed upon that the demand of differential customs duty along with interest and penalty and the rejection of declared value has been ordered without any evidence of proving the alleged guilt on the appellant. Order is accordingly prayed to be set aside and appeal is played to be allowed. 4. While rebutting these submissions, learned Departmental Representative has mentioned that the importer-appellant allegedly imported goods by misrepresenting their value through practices like altering, Maximum Retail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.9676716 were found almost identical with both the MRP stickers on the goods purchased from two different shops of open market, the origin of both the type of MRP stickers is alleged to be same i.e. belonging to the manufacturer/the appellant. (ii) The appellant is the direct beneficiary of the act of alteration of MRP which is why the appellant has enhanced the MRP on three best selling products to get the undue benefit. (iii) The correspondences made by the appellant with the dealers and retailers and correspondence made by him with Flipkart, Amazon and Snapdeal in the forms of emails are alleged to be back dated. These allegations have been levelled based upon the statements recorded by the investigating agency during the investigation. 7. We further observe that the officers who conducted the investigation, the proprietor of M/s. Sky Solution namely Vinod Khurana and proprietor of M/s. Bajaj Sales Corporation namely Shri Eshan Bajaj (the son of proprietor) were being cross examined by the appellant. It is apparent that during cross-examination the investigation officers have admitted about not drawing any sample from M/s. Moon Enterprises. It is important at this stage to take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the statement of Ms. Anju Rastogi even if it is recorded under section 108 of the Customs Act, 1962 but can not be relied upon to confirm the allegations and the demand based thereupon against the appellant as the she has not been cross-examined. Section 138 C of the Customs Act prohibits the admissibility of such statements. We draw our support from the decision of Hon ble Supreme Court in the case of Andaman Timber Industries Vs. Commissioner of C. Ex., Kolkata II reported as 2015 (324) ELT 641 (SC) and also on the decision of Arya Abhushan Bhandar Vs. Union of India reported as 2002 (143) ELT 25 (SC). 10. Rule 5 of Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules 2008 has been relied upon by the department while confirming the impugned demand. We observe that the said rule is vis-a-vis a manufacturer who alters or tempers the retail sale price declared on the package of the goods after their removal from the place of manufacture resulting in increase of price and in such situation the said increase price shall be taken as retail sale price of the goods removed. However, since the appellant herein is the importer as different from the manufacturer th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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