TaxTMI 
TaxTMI 
2013 (10) TMI 856
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....e conclusion that the appellant had mis -declared the value of imports and the actual value of imports amounted to Rs.28,40,85,648 /- and accordingly issued a show-cause notice dated 31.12.2007 demanding differential duty of Rs.1,40,76,571/-. This demand of duty was based on the evidence unearthed from the indenting agent's premises involving differential duty of Rs.48,80,774/-, contemporaneous value of imports involving duty of Rs.42,06,213/- and on the basis of LME prices minus permissible discount involving a duty of Rs.49,89,584/-. The case was adjudicated vide the impugned order and the learned Commissioner confirmed the duty demand of Rs. 1,40,76,571/- under Section 28 of the Customs Act, 1962, interest thereon under Section 28AB of the Act and imposed equivalent penalty on the importer under Section 114A of the Customs Act and imposed penalties of Rs.1,00,00,000/- each on Shri Bharat Bhushan Agarwal, Partner of the importing firm and on Shri Purshottam Parolia, one of the indenting agents and a penalty of Rs.5,00,000/- on Shri Ehsaan Gadawala, another indenting agent. The importer, his partner and the two indenting agents are in appeal before us. 3. The ld. counsel for the ....
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....ed on the LME price for prime metal, it is also submitted that the valuation cannot be resorted to the same as the same pertains to the prime metal and in the instant case the appellants have imported the scrap only. To support this contention, he relied on the decision of Sonia Overseas Pvt Ltd. vs. CC 2011 (270) ELT 259 (Tri-Del). 7. He further submitted that the statement taken during the course of investigation cannot be relied as same has been retracted by the indenter and the retracted statement was shown to the director of Shri Bharat Bhushan Agarwal without brining to his notice that this statement shown has been retracted. Therefore, it cannot be relied as it is not a true statement. He further submitted that as demands are not sustainable, therefore penalties cannot be imposed on the appellants. 8. On behalf of the indenters, Shri Anil Balani, and Shri J. Sanghvi, consultant appeared and submitted that the penalty has been imposed on them for aided and abetting in undervaluation of the scrap. As argued by Shri Jaikumar for the importer and its director, the statement which have been retracted during the course of investigation and the computer printout are not admissibl....
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....aw for the time being in force, - (a) a micro film of a document or the reproduction of the image or images embodied in such micro film (whether enlarged or not); or (b) a facsimile copy of a document; or (c) a statement contained in a document and included in a printed material produced by a computer (hereinafter referred to as a "computer printout"), if the conditions mentioned in sub-section (2) and the other provisions contained in this section are satisfied in relation to the statement and the computer in question, shall be deemed to be also a document for the purposes of this Act and the rules made thereunder and shall be admissible in any proceedings thereunder, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in sub-section (1) in respect of a computer printout shall be the following, namely : - (a) the computer printout containing the statement was produced ....
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....atement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section, - (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; ....
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....fore, the printout generated from the PC seized cannot be admitted into evidence for non-fulfillment of statutory condition of Section 138C of the Customs Act, 1962. 14. Further, we find that the statement recorded during the course of investigation from Shri Purshottam Parolia was retracted immediately but retraction was not shown to Shri Bharat Bhushan Agarwal, the partner of the importer and Shri Bharat Bhushan Agarwal admits that what is stated by Shri Purshottam Parolia is correct. If the statement of Shri Purshottam Parolia is retracted immediately (without showing retraction) it is presumed that Shri Bharat Bhushan Agarwal admitted the retracted statement. Therefore, demand is not sustainable on this account. 15. There is allegation against the appellant that they have paid the amount over and above the transaction value to their foreign supplier. From the records available before us, it is not ascertainable whether appellant has paid the amount over and above the transaction value to their foreign supplier and in the adjudication order, the ld. Commissioner has not discussed the same. This aspect is to be examined by the ld. adjudicating authority. 16. With regard to the....
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....e is some process cost but the discount given on the prime metal is without any basis and is only on presumption and assumption. Demand cannot be made on that. The similar issue was dealt with in Sonia Overseas Pvt. Ltd. Vs Commissioner of Customs, Amritsar 2011 (270) E.L.T 259 (Tri.-Del), wherein, while considering the valuation adopted for arriving at the value of Zinc Ash/skimming's, the Tribunal have observed certain facts which are reproduced below: (a) There are evidences to show undervaluation of the impugned goods as seen from the fact that the prices declared remained more or less static, irrespective of increase in value of zinc in international market and the fact that in the case of few Bills of Entries undervaluation is proved by acceptable collateral evidence and is accepted by the Appellant. (b) Waste materials by its very nature cannot be of uniform standard and it is difficult to assess its value unless more information about the usable material and the form in which such usable material is present, in the waste are available. (c) While LME prices can be good indicator to detect undervaluation it cannot be a measure for und....