TaxTMI 
TaxTMI 
2016 (2) TMI 389
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....to the shipping line, (iii) preparing invoices on CIF basis whereas the purchase is mostly on FOB basis, (iv) getting bills of lading prepared to show fraudulently that the freight is pre-paid. The premises of Shri Madan Lalwani were searched and his statements recorded on 21-10-2010 and 27-10-2010. Shri Lalwani stated that he generally advises the importers of cranes that if the price of the crane is less than Rs. 40/- per kg. on weight basis, customs authorities will not accept the value for assessment purposes. He also gave names of importers of cranes for whom customs clearance work was attended to by him. He disclosed that for his "No. 2 account" related to work of crane importers, he had 18 employees. 2.1 The premises of one Shri Brijesh Gala who was said to be engaged in transferring money overseas through "hawala" on behalf of crane importers was searched and his statement recorded on 21-10-2010. He explained his business relationship with crane importers viz. Shri Mahesh Aggrawal of M/s. Avi Trexim and Shri Sanjay Soni of M/s. R.S. Cranes and arranging money transfer on their behalf. In his further statement recorded on 25-10-2010, Shri Gala stated that on the basis ....
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....ned Order recorded that the amount of Rs. 1.5 crores deposited during investigations by Shri Karim Jaria is adjusted against duty payable and interest payable on the cranes imported by Crane Lifters (partnership) for the period which is beyond 5 years from the date of show cause notice as the same was deposited voluntarily. He relied on the judgment of CESTAT in the case of India Cements v. CCE, Madras - 1984 (18) E.L.T. 499 (TRB). 3. Heard both sides. 4. Learned Counsel for Crown Lifters and Crown Lifters Pvt. Ltd., stated that the submission of Shri Madan Lalwani cannot be taken as evidence because it does not implicate the appellant and he had merely stated that the Customs do not accept value which is less than Rs. 40 per kg. on weight basis, the cranes purchased prior to the investigations do not have matching values and the value is much higher and sometimes even if enhancement of value is done by Customs, the value remains between Rs. 18 per kg. to Rs. 36 per kg. He further contended -that the statement of Shri Brijesh Gala cannot be taken as evidence because it does not contain the name of the appellant. The show cause notice does not indicate whether the statem....
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.... the invoice value on CIF basis while the actual purchase is on FOB basis. 4.4 During the period of investigations the appellants were directed to get a certificate from the chartered engineers that is M/s. Bureau Veritas (India) Private Ltd. 4.5 It is the contention that the amount deposited by them before the issue of show cause notice has been adjusted/appropriated against the duty demand relating to 9 cranes which were imported beyond the period of five years from the date of show cause notice. This is not permissible under the law in view of the judgment of the Tribunal in the case of Photokina v. Commissioner Mumbai, reported at 2008 (223) E.L.T. 398 (Tri.-Mum.). 4.6 The Counsel for Shri Lalwani stated that Shri Karim Jaria, Managing Director of Crown Lifters Private Ltd. only stated that they were paying an amount of 5% of value of imported cranes as clearing charges to the appellant. He did not implicate Shri Lalwani in the contravention of the Customs Act. After his statement on 2-11-2010 he was neither summoned nor investigated till the issue of show cause notice. The allegation against him is that he advised importers to get the cranes cleared on values....
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.... finding as to how the amount deposited has been apportioned to be precisely the amount for the cranes imported earlier i.e. beyond 5 years. There is no admission by the appellant that the amount of Rs. 1.5 crores was deposited as duty for the nine cranes which had been imported beyond the period of five years. We do not agree with the reliance placed on the case of India Cements (supra). In that case it was held that the money was not received on account of any enforcement of demand or any coercive measures. But in the present case the deposit actually arises on persuasion. In fact the appellant has alleged coercion. In fact we agree with the reliance on the case of Photokina (supra). This judgment relied on the Hon'ble High Court of Madras decision in the case of Pilmen Agents (Private) Ltd. - 2000 (126) E.L.T. 79 (Mad.). Therefore we hold that the amount deposited cannot be appropriated as being duty and interest payable for the period beyond 5 years. It has to be proved that the amount deposited by the appellant during the investigation and before the issue of show cause notice is not the amount of duty which pertains to cranes imported within 5 years of the date of SCN. 7.1&....
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....ation reports in respect of the cranes. The denial by the adjudicating authority is without any sound reasoning. Summary rejection of this request for the reason that (para 24.7 of Impugned order) the investigation has commercially established undervaluation with the help of confessional statements and other documentary evidences is devoid of merits. 7.4 The use of the word "documentary evidence" in para 24.7 of the order leaves us guessing as to what is the real documentary evidence on which undervaluation has been established by the Commissioner. Rather we find no evidence except a statement. Then there is no evidence to show that the Chartered Accountant's Certificates produced by the appellant indicating the value of machinery as well as the invoices presented at the time of import are manipulated. It is not on record that any query was made regarding the genuineness of these documents. 7.5 We may now go to the method adopted by the Commissioner to arrive at the value of the goods which are alleged to be undervalued. The Commissioner first relies on the statement of Shri Karim Jaria who has stated/admitted the true transaction values. We find it strange that a perso....