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TMI Blog2025 (1) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... eir appearance on the dates specified, the appellant failed to appear. Once the appellant had chosen not to cooperate with the Department, the question of providing the pre-show cause notice consultation does not arise - thee are no violation of the mandatory provisions of providing pre-show cause notice consultation to the appellant. Whether there was any mis- declaration in the valuation of the goods imported by the appellant? - HELD THAT:- The investigation was initiated on the basis of an intelligence that many Delhi based importers were engaged in suppression of actual transaction value and resorted to gross undervaluation in import of Automotive Windshield (Automotive Safety Glass) of assorted sizes for various models of vehicles and the appellant was one of such importers. Search of the office premises of the appellant company on 12.10.2018, resulted in recovery of a CPU, printouts were taken from the email of certain documents including actual invoices under a Panchnama of the same date - From the recovery of invoices, it is evident that two sets of parallel invoices were maintained, one was the actual invoice bearing higher valuation and the other parallel set of invoice o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nagendra Yadav, Authorised Representative of the Department Shri M.S. Arora, Advocate for the Appellant ORDER BINU TAMTA : 1. Two separate appeals have been filed by M/s. Combine Trading Co and Shri Jaspreet Singh, assailing the Order-in-Original No. 03/2022/SG/PR.Commr./ICD-Import/TKD dated 28.01.2022 confirming the show cause notice whereby the self-assessed transaction value was rejected and re-determination of the value along with the order of recovery of differential customs duty with penalty under section 112(a) (ii) and 114 (AA) of the Customs Act, 1962 the Act was passed. 2. The facts of the case are that on an intelligence, SIIB-Import ICD, TKD investigated a case of mis-declaration and undervaluation in imports of Automotive Safety Glass shield of assorted sizes and PU Sealant. The office premises and the residential premises of the appellant were searched on 12.10.2018. During investigation, incriminating documents like actual Commercial invoices of past imports was resumed vide Panchnama dated 12.10.2018 from the office premises of M/s Combine Trading Company. It was noticed that the actual value of Automotive Safety Glass wind shield were not correctly declared before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the g-mail account of Shri Jagmohan Kaushal, Proprietor M/s Combine Trading Company, revealed that the appellant was in possession of actual invoices depicting correct transaction value of the goods, however they presented fabricated invoices for Customs clearances having lower than the actual values, to evade Customs duty on the higher value of the said goods. 5. In respect of the two Bills of Entry, the actual value found from the parallel invoices recovered during the investigation was taken for the purpose of assessment. In respect of the remaining goods that is 25 consignment of automotive windshield, the imports made by M/s. Gupta Glass Enterprises from the same foreign supplier was relied upon. Similarly, in respect of 11 consignment of PU Sealant, similar cases of import were investigated against M/s. Burberry International and M/s. Juneja Marketing Company where the importer admitted the actual price of PU Sealant of Chinese origin as ascertained at USD1.00(CIF) per piece was relied upon. The assessable value was accordingly, re-determined in terms of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 CVR, 2007 . 6. Show cause notice dated 17.09.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the declared transaction value is not genuine, which they failed to discharge. In the investigation, it has nowhere been pointed out that the appellant remitted any amount over and above the transaction value. 9. The learned authorized representative referring to the statements recorded under section 108 of the Act, of Shri Ranbir Singh, Import Export Manager of the appellant, Shri Jagmohan Kaushal, proprietor of the appellant and Shri Jaspreet Singh of M/s Chandok Glass House and also the documents retrieved from their email IDs, submitted that the appellant had indulged in suppressing the actual invoice giving the correct transaction value of the goods and presented fabricated invoices for customs clearance, having lower value, thereby violated the provisions of section 17 (1) and section 46 of the Act as they failed to file the correct declaration in the bill of entry and proper self assessment. The declared value has, therefore been rightly rejected under rule 12 and re-determined under rule 9 on the basis of import price for the same goods from the same foreign supplier. In view of the mis-declaration in the transaction value the extended period had been rightly invoked for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assorted sizes for various models of vehicles and the appellant was one of such importers. Search of the office premises of the appellant company on 12.10.2018, resulted in recovery of a CPU, printouts were taken from the email of certain documents including actual invoices under a Panchnama of the same date. It is an admitted position that two sets of parallel invoices were recovered, the details whereof are: i) Invoice bearing no. XY-AA ANE1709 N dated 05.02.2018 valued at USD 22137.43 and XY AA ANE1709 N dated 050.02.2018 valued at USD 11154.72 in respect of BE No. 544 7962 dated 5.03.2018. The commercial invoice valuing USD 22137.43 was the actual value of the imported consignment issued by M/s Xinyi Automobile Glass (Shenzhen) Co. Ltd., China of 1148 pieces of automobile glasses and the other invoice valuing USD 11154.72 was for the purpose of assessment of customs duty. ii). Other invoice no. XY AA ANE1710 M dated 05.02.2018 bearing higher import value of USD 20094.44 from M/s Xinyi Automobile Glass (Shenzhen) Co. Ltd., China of 1334 pieces of automobile glasses as against the declared value of USD13344.37. From the aforesaid recovery of invoices, it is evident that two sets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with invoice value USD 202137.43 was the actual value of the consignment and CI with invoice value. USD 11154.72 appears to be shown in Customs for assessment purposes by the company. The relevant extract from his statement is quoted below: I state that in order to prove my account, I am voluntarily opening my mail id [email protected] on the computer system installed in the office of SIIB and I have tendered self certified printout of mail to which CI of value 11154.72 was attached. Similarly, I have also called for the said mail to which invoice of value USD22137.43 was attached from our mail id, [email protected] on mail id [email protected] and have tendered self certified printout of mail along with CI of value 22137.43 and CI of value 20094.44 ( CI No. XY-AA - ANE 170-M dated 05.02.2018) iii). Shri Jaspreet Singh of M/s Chandok Glass House in his statement recorded on 24.10.2018 admitted that all the work related to import of Auto mobile Glass, sale purchase was being looked after by him as he was the authorised representative of the firm. He agreed with the statement of Shri Jagmohan Kaushal and had put his signatures on it in token of having accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eet Singh which have not been retracted are authentic and binding on them. Secondly, the fact that the appellant was merely a dummy importer and the entire import transaction was under the control of Shri Jaspreet Singh shows complicity between the two. Thirdly, all three have admitted the recovery of the parallel invoices which shows that the actual invoice is of higher value and the other copy of the invoice reflecting lower valuation was for the purposes of assessment at the customs. The other documents retrieved from the CPU also reveals that the declared value was on the lower side than what was reflected in the actual invoice by the foreign supplier. Lastly, we find that Shri Jaspreet Singh has admitted the mistake and also the liability to make the payment of duty. In view of such admission of the actual importer, it is an open and shut case and nothing further needs to be proved in view of the principle, what is admitted need not be proved, Commissioner of Central Excise, Madras V Systems Components Private Ltd 2004 (165) ELT 136 (SC) . 17. Once the goods imported are found to be mis-declared in valuation, the declared value needs to be rejected under rule 12 of CVR, 2007. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milarly, the average price derived from the actual invoices retrieved from the office premises of the appellant , the price determined for the period, 2018 was USD 1.36 as against USD 0.78, which was declared before the Customs. In respect of the imported goods PU Sealant, the valuation was arrived at on the basis of imports made by M/s. Burberry International and M/s Juneja Marketing Company, where the importer had admitted undervaluation. In their case also, the supplier was the same, i e., M/s Qinghe Yongxing Industrial Co. Ltd China. As against the declared price of 0.38 to 0.45 USD per 310 ML bottle imported during the period 2017 18, it was admitted by the importer there that the actual price was 1.15USD per 310 ML bottle of PU Sealant. In that case also actual invoice was also retrieved from the email ids where the value shown was USD 1.15 per 310ML bottle. We do not find any error in the findings of the adjudicating authority that the comparison of the goods have been made on the average value per Kg made from the same supplier as that of the appellant on the basis of year wise and quantity wise imports of Automotive Windshield and also in respect of PU Sealant. 19. We do n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntry and therefore, the invoice of higher value does not constitute any evidence unless there is corroborative evidence that the said invoice has been acted upon. Not only that there is recovery of incriminating documents at the behest of the proprietor of the appellant company but also clarifying the distinction in the two sets of parallel invoices. The department has adduced direct evidence of undervaluation. The modus operandi between Shri Jagmohan Kaushal and Shri Jaspreet Singh clearly establishes a case of conspiracy and in view of the settled principle it is therefore, impossible for the department to unravel every link of the transaction, many facts relating to these illicit transactions remain in the knowledge of the person concerned, CC, Madras vs. D.Bhoormull. The department has sufficiently discharged the burden of proving the undervaluation, which is unrebutted by the appellant in the absence of any substantial evidence. 21. The contention raised by the appellant that the two invoices retrieved cannot be used as evidence in the absence of a certificate under section 138C of the Act is unsustainable in view of the decision of the this Tribunal in the case of Shri T.N.Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es indicated in the invoices/commercial invoices could be taken for assessment of all past imports as the rate of product did not change much during period of imports. We are of the view that there is no infirmity on the part of the adjudicating authority in re-determining the value of the past imported goods on the basis of such invoices. In the peculiar facts and circumstances of the present case, there is no need for the Revenue to collect evidence in the form of contemporaneous imports. 21.1 In the present case, the invoices were retrieved from the e-mail ids by Shri Ranbir Singh as well as Shri Jagmohan Kaushal. They have admitted and self-certified them. Therefore, the objection raised in terms of section 138C of the Act does not survive. The revenue with the assistance of the appellant had co-related the Bills of Entry and the invoices retrieved by the appellant themselves from their e-mail-id reflecting the actual transaction value. The allegation of mis-declaration and under valuation has been established both by oral evidence as well as by the documentary evidence corroborating the same. 22. The learned counsel for the appellant has also challenged the applicability of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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