1984 (3) TMI 408

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.... Port in the month of September, 1982. The Customs authorities had received some secret information that the appellants were likely to import Jumbo Rolls of Magnetic Tapes from M/s. Acme of Hong Kong at substantially lower prices. Accordingly, when the consignments arrived, the bills, of entry were taken over for investigation by the Special Investigation Branch of the Custom House. Two statements of Shri Gulab Rai Vira, Proprietor of the appellant-company were recorded under Section 108 of the Customs Act, 1962 (hereinafter referred to as the Act). The first statement was recorded on 17-12-1982 and the second one on 31-12-1982. Both the statements were in the own hand writing of Shri Vira and were recorded in the presence of the Investigating Officer of the Customs Department. The appellants vide their letter dated 1-1-1983 addressed to the Assistant Collector of Customs, S.I.B., Bombay reiterated what had already come out in the statement of Shri Vira with regard to the nature of the transaction. The letter concluded with a prayer that they would like the waiver of the show cause notice but requested the case to be decided after personal hearing as early as possible. The Addition....

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....oll. He pleaded that this was a document on which the Departmental authorities were themselves relying. Dr. Singhvi laid lot of stress on the fact that the case of the lower authorities was built up on surmises and conjectures, because they seemed to have been influenced by what had been a report from a secret contact. Further, the proforma invoice dated 5-8-1982, the final invoice dated 11-8-1982 and the documents retired through the Bank of Maharashtra, all showed the price of the goods as HK $ 1080 per roll of 15,000 ft. Dr. Singhvi has vehemently argued that the onus of proving under- valuation was on the department and that the department had leaned heavily on the statement of the proprietor of the appellant-company and quotations of one or two contemporaneous imports, allegedly made around the same time. In particular, he strongly criticised the reliance placed by the Department on the case of importation effected by Shri A.K. Singh as, according to him, the department had not conclusively established that the goods imported by Shri Singh were of the same grade as those imported by the appellants. He has further contended that all commercial transactions need not conform to a....

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....g of the imported goods. He has pointed out that in his statement dated 17-12-1982 recorded under Section 108 of the Act, Shri Vira, the proprietor of the appellant-company had clearly stated that the price charged to the appellants was a concessional price and that the then prevalent price for the goods in question was HK $ 1135 per roll of 10,000 ft. Not only this, in his subsequent statement recorded on 31-12-1982, Shri Vira affirmed what he had stated earlier in this statement of 17-12-1982. Not only this, on 1-1-1983, the appellants wrote a letter on their own volition to the Assistant Collector, S.I.B. in which they fully confirmed what had been stated by Shri Vira in his two statements before the Customs officers. Shri Ramanathan has argued that it was not the appellants' case at any stage that these statements had been made under duress or coercion. We find that Shri Vira is an educated person and the statements had been written by him in his own hand. The version about the price given in the two statements and the letter dated 1-1-1983 were in conformity with each other. 7. Shri Ramanathan has further submitted that the appellants are now trying to wriggle out of t....

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....e for similar goods as prevalent in Hong Kong; (ii) The secret communication dated 26-11-1982 received from the Commission for India, Hong Kong addressed to Shri Tampi, Deputy Collector of Customs, Bombay ; and (iii) Comparison of appellants price vis-a-vis the price of one Shri A.K. Singh. 10. On the first ground, we observe that the statements dated 17-12-1982 and 31-12-1982 were made by Shri Vira, the proprietor of the appellant-company, shortly after importation and were in his own handwriting. It has nowhere been alleged before the lower authorities or, for that matter, even before us that the said statements were obtained under duress or coercion. In other words their authenticity has not been challenged. Further, the letter dated 1-1-1983 sent by the appellants to the Assistant Collector, S.I.B. clinches the issue as it was sent of their own accord. There was sufficient time between the recording of the statements and the addressing of this letter to enable the appellants to ponder over the contents of the statements made by Shri Vira and gauge their implications. The appellants had also time at their disposal to obtain legal advice with regard to these stateme....

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....es no doubt, whatsoever, that the appellants sought the waiver of the show cause notice to cut short the proceedings against them. We, therefore, see no substance in the second contention put forth by Shri. Narasimhan. 12. Dr. Singhvi strongly contended that the onus to prove the allegation of under-invoicing lay with the Department. Indisputably, when the goods were imported the onus to prove the charge of under-invoicing rested on the Department. However, it may shift from one side to the other during the course of the proceedings when evidence is collected or laid by the parties. In the present case, after the recording of statements of Shri Vira, the onus which originally was to be discharged by the Department, shifted on to the appellants. By making a voluntary statement, the appellants, in the absence of any evidence to the contrary, voluntarily wrote to disprove the charge of under-invoicing which, in the final analysis they failed to do. 13. We agree with Shri Ramanathan that the appellants cannot wriggle out from their stand taken in the statements of Shri Vira that the price of the goods imported by them was what had been ascertained by the Custom House. W....