2000 (8) TMI 228 - AT - Customs

Tribunal grants relief in Customs Act case due to insufficient evidence, sets aside impugned order

BUSSA OVERSEAS PROPERTIES LTD. Versus COMMISSIONER OF CUSTOMS, MUMBAI

BUSSA OVERSEAS PROPERTIES LTD. Versus COMMISSIONER OF CUSTOMS, MUMBAI - 2001 (137) E.L.T. 637 (Tri. - Mumbai) Issues Involved:1. Misdeclaration of the value of imported goods.2. Recovery of differential duty u/s 28(1) of the Customs Act.3. Imposition of penalty u/s 112 of the Customs Act.4. Admissibility and reliability of documentary evidence.5. Presumption u/s 139 of the Customs Act.Summary:1. Misdeclaration of the Value of Imported Goods:The appellant imported twenty-nine consignments of vatted malt spirit from M/s. Morrison Bowmore Distillers Ltd. (MBL) and declared a value of £626,233.27. The department alleged that the actual value was £779,977.13, resulting in a differential duty of Rs. 2,26,08,214/-. The Commissioner confirmed the misdeclaration and imposed penalties on the appellant and its managing director.2. Recovery of Differential Duty u/s 28(1) of the Customs Act:The department issued a notice proposing the recovery of differential duty based on the alleged misdeclaration. The Tribunal initially dismissed the appeals, but the Supreme Court set aside the orders, directing a fresh hearing considering a statement by Alastair Ross, which was previously not considered.3. Imposition of Penalty u/s 112 of the Customs Act:The Commissioner imposed a penalty of Rs. 2.00 crores on the company and Rs. 50.00 lacs on Bharat Bussa. Both parties contested the penalties, arguing that the documents relied upon by the department did not conclusively prove the alleged payments.4. Admissibility and Reliability of Documentary Evidence:The evidence cited by the department included letters, internal vouchers, banker's cheques, and ledger extracts. The Tribunal found these documents insufficient to establish the alleged payments. The Tribunal noted discrepancies in dates, lack of signatures, and the absence of corroborative evidence linking the documents to the appellant. The Tribunal emphasized that the ledger extract did not appear to be maintained in the regular course of business.5. Presumption u/s 139 of the Customs Act:The Tribunal discussed the presumption of the truth of contents u/s 139 but concluded that the documents presented did not meet the criteria for such presumption. The Tribunal referred to the Supreme Court's decision in C.C. v. East Punjab Traders, which held that presumption under Section 139 could not be raised merely based on the department's offer for cross-examination.Conclusion:The Tribunal concluded that the evidence presented by the department was insufficient to establish that the payments were made by or on behalf of the appellant. The appeals were allowed, and the impugned order was set aside, granting consequential relief according to law.