TaxTMI 
TaxTMI 
TaxTMI 
2005 (4) TMI 525
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.... seeking to - (i) demand Custom Duty on 42 consignments imported from Pearl & one from Mirtex, on 4 consignments from Kuile & other on grounds of mis-declaration of values in case of ATRT cable of country of origin also as per chart II A & B, III to the notice. (ii) Confiscation of the goods seized. (iii) Penalty under Section 114A & other provision of Customs Act, 1962. 1.3 By an order dated 29-12-2000, the adjudicator confirmed the demands of duty as per chart II A & B III ordered the confiscation of the AT & T Cable rolls & gave an option to redeem & imposed penalties. The demand of Rs. 6,50,385/- as per chart IV to notice was dropped & goods were ordered to be released. Hence these appeals. 2. After hearing both sides and considering the matter it is found - (a) Penalty on the proprietary firm and its Proprietor imposed separately cannot be upheld. A Proprietary firm is not a separate legal person from its proprietor having a separate mind and identity. Imposition of penalty in this case on both the proprietor and the firm shows total lack of application of mind and the same is t....
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...., before the possession and access of Shri Puri to the documents of M/s. Pearl Industrial Company Hong Kong could be even considered for evaluation. (ii) further the authenticity of the documents which are recovered from the search of Puris residence at Delhi vide Panchnama dt 9-11-97 itself raises presumption against and about Puri being an impartial unbiased actor in the entire drama enacted by DRI officers. This panchanama, on perusal, reveals to be recording the search to be over in 90 minutes, from start to finish, when the house and numbering of the documents, sorting etc, itself would take 20 to 45 minutes to be gone through, besides the time taken for the house being searched in a professional manner. The recovery, of the documents, under this search itself is suspect. (iii) The entire role of Shri K.M. Puri gets fuzzy and curious on further reading of the show cause notice, where in para 26.5 Puri promises to submit details for 27 consignments in terms, "will furnish the required information/documents about the actual agreed price and the export declaration at the earliest". While no such promise is perused. Whether such a promis....
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.... the photocopies of the said 'declaration' relied are not authenticated/certified to be true copies of & by Hong Kong Customs records and thus as secondary evidence which they constitute have to be rejected. Since no seal of Customs on Authorities could be observed the authenticity is questionable. The law on the subject is very clear. The Apex Court in the case of Collector of Customs v. East Punjab Traders - 1997 (89) E.L.T. 11 (S.C.) laid down the law that if authenticity of the photocopies, if is suspect, their presumption under section 139 of the Customs Act cannot be raised. This position has been followed in the case of Taito Watch Manufacturing Inds. [2004 (173) E.L.T. 17 (Tri)] following this position in law, it has to be held that there is no material of primary or secondary nature of evidence available to be relied in this case. (c) Photocopies of export declarations made at the Port of Export have not been held to be material to enhance the values by this Tribunal (Taito Watch Manufacturing Inds. - 2004 (173) E.L.T. 17 (Tribunal) & V.K. Impex v. Commissioner - 2002 (141) E.L.T. 564 (Tri.) where appeal filed by the Revenue....
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....de from 'Kirle', for the very same reasons, as for the "pearl" demands, the documents as relied cannot be considered as primary or secondary evidence to arrive at a case of mis-declaration and establishment of under-valuation. The perusal of documents enclosed vide letter dt 7-8-99 relied upon by the addendum dated 4-12-97, as supplied, reveals that Hong Kong Customs letter dated 4-3-1998 reads as...... "Request for investigative assistance Kirle enterprises (HK) Ltd further to my letter of 26 August 1997, we have now completed verification of the values of four consignments of components parts of car cassette players exported by the above company to India in September 1993. Our investigation revealed that the company did issue the four invoices referred by you to the Indian Buyer, Wings Electronics, who reported that the cif values stated there be falsely represented to show only 59.17% of the true value. Two genuine invoices, showing the true values had been issued to cover the four consignments. Details of the invoicing arrangements are as follows :- B/L No. & Date of....