TaxTMI 
TaxTMI 
2010 (3) TMI 554
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.... Shailesh B. Jogani. 2. Heard both the sides. 3. Before we proceed further, the case of the department against the appellant is explained in brief. M/s. Jogani Tyres (India) had imported and cleared 1,426 Michelin brand tyres as detailed below : S. No. Tyre Size No. of Pcs. (Truck Tyres) Bill of Entry No. & date Invoice No. Value (US$) Per piece 1. 7.50 R15 x 135G Michelin Brand 150 2910 dated 8-5-95 24/95 dated 13-3-95 of M/s. Inter ocean Merchantile Co., Singapore. 25 2. 7.50R 15 x 135G Michelin Brand 160 7313 dated 20-6-95 40/95 dated 12-5-95 of M/s. Inter Ocean Merchantile Co., Singapore. 25 3. 7.50R 15 x 135G Michelin Brand 558 1302 dated 10-4-96 97/96 dated 23-3-96 of M/s. Inter ocean 25 4. The appellants submitted invoices issued by Interocean Merchantile Co., Singapore while filing bill of entry. In some cases, value was enhanced at the time of clearance by the excise officers which was accepted by M/s. Jogani Tyres. Subsequently, during the course of investigation, department procured two invoices raised by M/s. Michelin, Bereich Vertrieb, Bannwaldallee 5, -....
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.... a wrong rule of valuation rules, the appellants have been deprived of the opportunity of properly defending their case and therefore on this ground also appeal has to be rejected. (iii) Further, he also submitted that the value had been enhanced after assessing the goods provisionally and therefore the department cannot enhance the value second time for the same consignment. (iv) After twelve days of recording of statements, Shri Lalit B. Jogani retracted his statements and therefore the same cannot be relied upon. (v) He also submitted that the invoices received from German Customs assuming that they are acceptable, would still cannot be utilized for enhancing of value in respect of the consignments imported one year before namely in 1995. No contemporaneous evidence of importation had introduced for enhancing the value. (vi) Further, he also submitted that an importer is not bound to import goods only from manufacturer but he is free to import from anybody. (vii) Further, Shri Kantawala,....
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.....L.T. J355 (S.C.) (iv) He also submits that merely because the manner as well as the show cause notice treat Michelin Hong Kong as the manufacturer which is obviously an error committed both in the show cause notice and the Order in Original, it would not affect the proceedings. The basis of proceedings is that the original manufacturer's invoice has been received from German Customs and these invoices show a much higher price and on that basis undervaluation is sought to be established. The decisions cited by the Commissioner as regards quoting of a wrong rule or a section would apply to this aspect also. It cannot be said that appellants are ignorant of the facts since it was they who had manipulated the invoice. Whether the invoice mentioned is that of Michelin Hong Kong or Germany, the only way the appellants could have rebutted the evidence to show that the goods were valued correctly was to get a letter from the supplier in support of their contention that the value was actually what was declared by them. If the price declared by the appellant was correct, supplier who had done business with them would not hesitate to come to their assis....
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....e notice does not get vitiated is correct. Further, we also find that the Commissioner has proceeded exactly as per the provisions of valuation rules to re-determine the value. As regards the fact that invoice has not been signed, we do not find that this is a proper rebuttal of the evidence produced by the department. In this connection we find that the decisions cited by the learned advocate are not applicable to the facts in this case. In the case of Mebajeona Stud Farm v. CC, Mumbai reported in 2008 (224) E.L.T. 330 (Tri.-Mumbai), the Tribunal held that unsigned invoice relied upon by Revenue which is approximately eight months after import of mares cannot be relied. It is not the case of the appellants in this case that the invoice was more than eight months after the import. In the case of Galaxy Funworld Pvt. Ltd. v. CC, Mumbai reported in 2007 (220) E.L.T. 332 (Tri. - Mumbai), the proposal for enhancement of value on the basis of unsigned invoice of manufacturer was rejected in view of the fact that there was no clear admission by the director of the importing firm and the department had relied upon only on the invoice and there were no evidences of contemporaneous report. ....
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....ed 5-9-96 does not mean that department cannot reopen the assessment when the original invoice is traced or gathered or investigation shows that the goods were undervalued. 12. Further, enhancement of value in respect of the consignment is also in order in view of the clear admission by Shri Lalit B. Jogani. 13. As regards the contention that penalty under Section 114A and interest under Section 28AB cannot be made applicable since all the bills of entries were filed before 28-9-96, we find that the Commissioner has correctly applied the provisions only in respect of one bill of entry. According to Section 28, the expression relevant date means :- (a) in a case where duty is not levied, or interest is not charged, the date on which the proper officer makes an order for the clearance of the goods; (b) in a case where duty is provisionally assessed under Section 18, the date of adjustment of duty after the final assessment thereof; (c) in a case where duty or interest has been erroneously refunded, the date of refund; (d) &nb....