2019 (3) TMI 1447

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.... Rules) and under Section 28(4) of the Customs Act, 1962 (for short, Customs Act), Section 28A of the Customs Act along with the penalty under Section 114A of the Customs Act, 114AA of the Customs Act on the appellants. Being aggrieved by the impugned order, the appellant has assailed the same before this Tribunal. 2. The fact of the case is that the appellant is engaged in importation of Cubic Zirconia (cut and polished) by mis-declaring the quality by declaring the superior quality as inferior quality before the assessment by the Customs at Air Cargo Complex, Jaipur. The appellant also imported packing materials for the packing of such imported Cubic Zirconia for the sale through different customs port/foreign post office, Jaipur. 3. Acting on intelligence, investigations were undertaken by the Customs department into the import made by the appellant. The appellant had imported semi precious stones (Cubic Zirconia) as well as packing materials bearing the brand names such as 'Korean Star', 'Starline', 'Decent' and 'Swiss Star'. The semi precious stones were of the various sizes 1.0 mm to 3.0 mm which were imported from Hong Kong through Air Cargo Complex. As indicated earlier, ....

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....e valuation report from one Shri Rajesh Dhamani of M/s National Facets, Jaipur as independent valuer. 3.2 During the course of investigations four statements were recorded from Shri Sunil Batwara, proprietor of the appellant on 19.12.2012, 24.12.2012, 18.2.2013 and 27.8.2013 wherein he has accepted the contention of Department regarding undervaluation of the imported Cubic Zirconia and deposited Rs. 5 lakhs. The Show Cause Notice was adjudicated upon the Joint Commissioner of the Customs for both the period from 5.10.2011 to 7.12.2012 amounting to Rs. 4,15,796/- and Rs. 4,99,590/- for the period from 18.12.2009 to 30.9.2011. 4. Ld. Advocate on behalf of the appellant contests the appeal on the ground that the said impugned order is not sustainable on account of the fact as under: (i) That the statement of Shri Sunil Batwara, the proprietor of the appellant was recorded on the date of search itself i.e. on 19.12.2012 and subsequently on 27.3.2013 three other occasions. (ii) Statements were obtained by the department as per their requirement in typed form and Shri Batwara has not tendered the same as for his own. (iii) Shri Sunil Batwara, proprietor of the appellant company acce....

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....umstances the impugned order is required to be upheld in appeal. 6. We have heard the ld. Advocate and ld AR at length and also perused the appeal record. 7. It is on record that the proprietor of the appellant has accepted the mis-declaration in their various statements and also paid a substantial portion of demand prior to adjudication by the lower adjudicating authority. Although the various case law has been submitted by the ld. Advocate on the issue of undervaluation and reopening of the assessed Bill of Entry on which duty has been finally paid and goods have been cleared from the Customs area. But we find that the record has been obtained from the computer of the appellant company and the same was never disputed by their proprietor. The various statements which were tendered under Section 108 of Customs Act were never ever retracted. 8. As that case Rule 9(1) i.e. residual method was applied as the Department was of the opinion of that determination of value under Rule 6 could not as per Rule 3, 4 and 5 and therefore residual method was applied. In so doing Department as per Para 8 of the Order Department constituted a Valuation Committee of Experts i.e. Shri Sachin Gupta....

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....ave to be seen in proper perspective. The same is as under : In statement dated 19.12.2012 he states as under: "..... there is difference in prices of vaccum packing and normal packing of Cubic Zirconia. Normally the prices of vaccum packed Cubic Zirconia is three times of normal pouches packed Cubic Zirconia". The statement which is a relied upon document reveals that prices of both the Zirconia are different. In subsequent statement dated 24.12.2012 it was got written from Shri Batwara that "I further state that we import Cubic Zirconia of same sizes in one consignment both in normal packing and vacuum pouches also. I agree that the Cubic Zirconia packed in normal packing and in vacuum pouches of the same consignment may be of same goods and quality and prices of these may be approximately the same". Shri Batwara in his statement used words "may be". Thus he has expressed only possibility that "the Cubic Zirconia packed in normal packing and in vacuum packing pouches of the same consignment "may be" of the same grade and quality and the prices of these 'may be' approximately the same". This, it appeared that he never accepted the under valuation in a categorical manner. 11.....