1999 (10) TMI 766 - AT - FEMA

Tribunal Overturns Penalty for Alleged Under-Invoicing; Emphasizes Need for Objective Evidence in Foreign Exchange Cases.

The appellate tribunal overturned the penalty imposed on the appellant for contravening section 9(1)(a) of the Foreign Exchange Regulation Act, 1973, due ... - Issues:1. Imposition of penalty for contravention of section 9(1)(a) of the Foreign Exchange Regulation Act, 1973.2. Allegation of under-invoicing and payment in violation of section 9(1)(a).3. Assessment of value by customs authorities and its impact on the case.4. Reliance on appellant's statement as evidence and the requirement of objective data for value determination.Analysis:1. The appeal was against the imposition of a penalty on the appellant for contravention of section 9(1)(a) of the Foreign Exchange Regulation Act, 1973. The penalty was imposed based on an allegation that the appellant paid an amount to a sales executive for under-invoicing. The appellant challenged the order on various grounds.2. The appellant's Bill of Entry declared a lower value for the imported goods compared to the value assessed by customs authorities. The difference in values formed the basis of the penalty. However, the appellate tribunal noted that the customs assessment was challenged in a separate case, where it was held that there was no evidence of mis-declaration. Since the penalty was based on the same value assessed by customs, and that assessment was set aside, the tribunal found no evidence of under-invoicing to support the penalty.3. The tribunal emphasized the importance of objective data for determining the value of imports. It highlighted that the appellant's statement alone cannot be considered as sufficient evidence for value determination. The tribunal stated that a person cannot be held guilty based solely on their admission, and the department must prove the charges with adequate evidence.4. Ultimately, the tribunal concluded that without evidence of under-invoicing, the allegation of the payment in violation of section 9(1)(a) could not be sustained. Since the under-invoicing allegation was unsubstantiated, the tribunal allowed the appeal and set aside the impugned order, ruling in favor of the appellant.