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TMI Blog2002 (1) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... ex of Singapore. Initially the assessments were made on provisional basis after examination of the goods. Samples were drawn from the said consignment and after fully satisfying themselves the Revenue officers finally assessed the consignment in question in the month of July, 1999. The respondents availed the benefit of DEPB scheme in terms of para 7.25 of Exim Policy, 1997-2002 and availed the credit, as admissible to them. 2.2 Subsequently on the basis of suspect about over-valuation of about a number of exports goods of various exporters, investigations were initiated against such exporters including the respondent. The Commissioner of Customs (Port) vide his letter dt. 21-9-99 addressed to Member, Customs opined that there was no over-invoicing in the case of decorative finished glass beads (exports in question) within the price range of Rs. 6,000/- to Rs. 6,500/- per Kg. It is also on record that the final assessments were not appealed against under the provisions of Section 129D of the Act. However, the case was investigated by the Special Investigations Branch of the Customs Department at Calcutta, who during the course of investigations recorded the statements of va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing issues for consideration :- (i) Whether the assessment finalised on the basis of Board's circular can be reopened by way of an executive order and whether such circulars are binding for the purpose of reopening assessments. (ii) Whether there was a cause for invoking provisions of Section 28(1) of the Customs Act, 1962 for reasons of fraud/collusion/ wilful mis-statement or suppression of facts. (ii) Whether substantive evidence has been collected to pursue the charge of over-valuation of finished glass beads. 4. Arguing on the first issue he submits that the adjudicating authority's view that the process of re-opening the final assessments without taking recourse to the provisions of Section 129D of the Customs Act, 1962 are not correct inasmuch as it is settled law that where importation and clearance is obtained for fraudulent means, the same could not debar the issuance of show cause notice for confiscation of the goods and such a clearance is not required to be set aside by exercise of revisional powers before the ill effects of the fraud can be set right for initiation of the process of confiscation of the fraudulently cleared goods. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore us, requested Shri Dutta, appearing for the Revenue to point out to the portion of the statement referring to the commission, but Shri Dutta could not point out the same. It is seen that in all, four statements of Shri Saraswat were recorded. In his first two statements recorded on 8th and 11th February he has admitted having sold the beads to the respondents. The subsequent two St. recorded on 11th and 12th of February are to the effect that no glass beads were sold by him. The said statements were retracted by him immediately on the next days by making representations to various authorities by Shri Saraswat who contended that he was compelled to make such statements and referred to the circumstances reflecting upon the factum of the statements having been tendered under duress and pressure. It is also seen that said Shri Nirmal Kumar Saraswat filed before the Commissioner certified copies of sale/purchase agreement, challans, invoices, payment instruction and money receipts issued to the respondents and admitted before the adjudicating authority, in his reply filed before him that the said sale purchase was complete between him and the respondent company and the glass beads ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same was returned to him in cash. On the other hand we find that the concerned persons of the 9 different companies have stated that the proceeds of the cheques were returned to Shri Ramprakash Gupta. Shri Kishan Goswami has denied any role in the purchase of glass beads exported by M/s. Ramapati Exports and Shri Bharat Mahensaria, proprietor of the respondent export firm has also denied that Shri Kishan Goswami is a representative of the respondent company. As such it has been strongly argued by the respondents that the statement of Ramprakash Gupta is self-contradictory and being not corroborated by independent evidence does not carry any evidentiary value. He has in one of his statement dt. 24-1-2000 has clearly admitted that he does not know the respondent company. 8. We find that the Commissioner of Customs, Calcutta, on appraisal of the evidence and the statements of various persons has concluded that the statements may create an element of doubt and suspicion with regard to the valuation of the impugned glass beads, but no tangible evidence has been obtained to substantiate the evidence collected through the statements. We find that all the three persons Shri Nirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the same to the respondent has been accepted by the Revenue inasmuch as no appeal has been filed against the said portion of the impugned order dropping the proceedings against the said three persons. If that be so, the Revenue's contention that the goods were not sold by Shri Nirmal Kumar Saraswat at the rates reflected in the invoices cannot be accepted inasmuch as the same would amount to reversing the findings of the adjudicating authority relatable to Shri Nirmal Kumar Saraswat without there being any appeal by the Revenue against him. 10. The respondents in their memo of appeal have strongly challenged the allegations made in the show cause notice that the quotation of the several parties and computer print outs issued by the Bombay Customs show the price of the beads in the range of Rs. 70/- to Rs. 100/- per kg by referring to the other documents in the shape of price list of various parties and the invoices, quotations and computer print-outs that the value of the glass beads during the relevant period were as high and as comparable to the value declared by the respondents. They have also referred to the adjudication orders in respect of other exporters of glass b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from the Singapore importer have been received by them. The Revenue is also not disputing that the full export values were realised by the respondents from their foreign buyers through banking channels and bank realisation certificates have been verified. Enquiries conducted by the Revenue from the High Commissioner of India in Singapore as regards the purchase of the subject exported goods also revealed that the foreign buyer was a living company and the financial capability and/or business reputation of the said foreign buyer were not even doubted. In this view of the matter also, we do not find any merits in the Revenue's case. In fact it is seen that during investigation proceedings the Commissioner of Customs, Calcutta in his communication to the Board made in September, 1999 opined that the decorative finished glass beads exported from the Calcutta Port, in the recent past range from Rs. 6,000/- to Rs. 6,500/- per kg and there was no case of over-valuation noticed. Having already held that there was no sufficient evidence to sustain the charge of under-valuation against the respondents, we do not find any merits in the Revenue's appeal. 14. The respondents have also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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