TaxTMI 
TaxTMI 
2016 (2) TMI 8
X X X X Extracts X X X X
X X X X Extracts X X X X
....85359/14-MUM For the Appellant : Shri Atul Nanda, Sr. Adv. Ms Sikha (supra), Adv. Dr Prabhat Kumar, Adv. Shri Piyush Kumar, Adv. For the Respondent : Shri V K Singh, Spl. Counsel ORDER Per M V Ravindran All these bunch of appeals are arising out of similar Orders-in-Original No. CAO/120/2013/CAC/CC(I)/AB/GR-I dated 21.10.2013 and 81/2011/CC(I)/JNCH dated 28.02.2012 passed by the Commissioner of Customs (Import), Mumbai and Nhava sheva rejecting the transaction value of the imported and poppy seeds from Turkey. The adjudicating authority has confirmed the demands raised in various show cause notices and has also imposed penalties under Section 114AA and 112(a) of the Customs act 1962 on the appellant's firms and personal penalties on the individuals. Since all these appeals raise a common issue arising out of the common investigation they are being disposed off by a common order. 2. The applications for out-of-turn hearing of appeals are disposed of and appeals taken up as out-of-turn hearing applications in other similar matters were similar matters were allowed on 20.05.2015. 3. These matters were called on 30 June 2015 submission of Counsel for appellants....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the case which is summarized as under: (a) As regards the insurance documents, the adjudicating authority has acted in complete ignorance of the stated position in law inasmuch the insurance documents and the value stated therein cannot be used as a basis for ascertaining the valuation as held by the Apex Court in the case of Orient Enterprises 1997 (92) ELT A 69 (SC) arising out an order passed by the Tribunal in the case of Orient Enterprises - 1986 (23) ELT 507; Christille Violene - 2005 (179) ELT 322; Nana Chaka private Limited - 2004 (163) ELT 464 and Mihir Enterprises - 2008 (227) ELT 75. (b) It has been submitted that the documents furnished by DRI before the adjudicating authority has sought to corroborate thereof all documents of insurance on the basis of documents received from the Indian embassy, Moscow under letter dated 30/10/2009 of the first Secretary Trade, embassy of India Moscow forwarding letter dated 14/10/2009 addressed by Deputy Director General (External), prepared and sent by Turkish authorities to the first Secretary Trade, Embassy of India, Moscow, supposed to be showing an invoice-wise comparative values of Indian declaration and compat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....een certified as true copies, the originals have not been made available and hence unauthenticated and unsigned documents could not be used, even though they may have been forwarded by the agency to authorities i.e investigating agency through the official channels. The following case laws are relied upon for this proposition: 1. East Punjab Traders 1997 (89) ELT 11 (SC) para 5 2. V K Impex 2002 (141) ELT 564 affirmed by Supreme Court as reported at 2003 (158) ELT A 184 3. Adani exports 2009 (243) ELT 115 4. Venus Enterprises 2006 (199) ELT 661 5. South India Television Private Ltd. 2001 (136) ELT 243 6. Kainya and associates pvt. Ltd. 2006 (204) ELT 72 7. Taito watch manufacturing Industries 2004 (173) ELT 17 8. India optics P Ltd., 2000 (123) ELT 1022 9. Wings Electronics 2006 (205) ELT 1146 10. Truwoods Pvt Ltd. 2005 (186) ELT 135. 8.2 It was also submitted on behalf of the appellant that reliance placed on export documents/declarations has been held by the Hon'ble Courts to be fraught with the possibility of error as there is a possibility that the exporter declares a higher price i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h rules 5 to 8. Conversely, if the transaction value can be determined under rule 4(1) and does not fall under any exceptions as provided under rule 4(2) there would be no question of determination of the value under subsequent rules. 8.5 It is emphasised that when investigating authority wishes to reject the transaction value as declared by the importer as being incorrect or unacceptable, the investigating agency has to bring on record material to show contemporaneous imports which would obviously include the date of contract, the date and time of importation at a view in price. It is the submission that in a situation like the one in these cases, the investigating agency has reasons about the truth and accuracy of the declared value, it may ask the importer to provide explanation for the declared value. It was further submitted that the term 'reason to doubt' does not mean include "reason to suspect", hence the investigating agency, if it suspects a transaction value, it must rely on the reasons for which investigating agency has documentation, it is the duty of the adjudicating authority to see the probative value of such documentation before rejecting the transaction....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s of commodities traded at London, also indicates that the price of imported poppy seed's varies between 1500 to 2000 US dollars pmt; the information obtained from Comtrade also indicates the same as average price for the poppy seed's imported from Turkey into India. It is the submission that as against such data, the value declared by the appellants was very low hence the transaction value was rejected. It is the submission that on the phase of incriminating documents having evidentiary value the rejection of transaction value was correct and the submission that contemporaneous value should be adopted is also incorrect and it has been dealt by the adjudicating authority in the discussions and findings in the adjudication order. It is the submission that the case laws relied upon by the Counsel of appellants are not applicable in the cases in hand. It is the submission that in support of valuation of the imported goods reliance is placed on the following decision: i. Ispat Industries Ltd 2006 (202) ELT 561 ii. Rajkumar Knitting Mills 1998 (98) ELT 292 iii. Varsha plastics private Limited 2009 (235) ELT 193 iv. Agarwal industries Ltd., 201....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t in order to be admissible as evidence, the copies of foreign documents are required to be tested and signed by the Turkish Customs authorities which they were not. Further it is settled law that the documents must bear the signature of the officers making the enquiries and be certified as true copies. It is to be noted that the originals have not been made available even to the Tribunal and unauthenticated and unsigned documents were relied upon, which could not be used, even if they may have been forwarded by 'authorities' to the investigating agency through official channels. This law is settled by the Apex Court in the case of East Punjab Traders (supra). (b) As regards the insurance documents as well as entries from Comtrade and UK public ledger and other journals it is now well settled law that such information cannot be used to doubt or reject the transaction value. As regards the value on the insurance documents, Apex Court in the case of Orient Enterprises (supra) while affirming the judgement of the Tribunal; Christelle Violene (supra); Nina Chaka Pvt. Ld.(supra) held that the value declared for insurance purposes by the exporter cannot be the basis for ....