TaxTMI 
TaxTMI 
2022 (2) TMI 370
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Bills of Entry, totally valued at Rs. 12, 83,01,348 and re-determined the value of blankets imported vide Bills of Entry No.6773013 dated 16.09.2014 and 7151082 dated 22.10.2014; held the goods liable for confiscation; imposed penalty of Rs. 1,71,61,806/- on the appellant concern under Section 114A; penalty of Rs. 25 lakhs under Section 114A on the company and a penalty of Rs. 20 lakhs on Pankaj Jain, Authorized Representative. (ii). confiscated the goods valued at Rs. 64,08,566/- imported vide Bill of Entry No.9553280 dated 12.06.2015 and Bill of Entry No.2002700 dated 23.07.2015; imposed penalty of Rs. 5 lakhs under section 112 of the Customs Act,1962 on M/s. Trade well(importer-appellant) and Rs. 2 lakhs on Pankaj Jain Authorized Person of the importer (appellant). Hence, these appeals C/50019/2019 and 50020/2019 filed by the company and the proprietor Shri Pankaj Jain, respectively. 2. Ms. Nisha Bineesh, Learned Counsel for the appellants, submits that the lower authority has relied on the following, in order to allege mis-declaration of the total number of 298 imported paper cup machines and blankets. (i). two Proforma invoices having the same number with....
X X X X Extracts X X X X
X X X X Extracts X X X X
....(2019)370 ELT 1569 (Tri-Mumbai). (ii). CCE Pune - I vs. S.S. Engineers, 2014 (313) ELT 429 (Tri. Mumbai). (iii). Golden Agro Corporation vs. CC, Jaipur-I, 2017 (354) ELT 655 (Tri. Del) (iv). Suyog Extrusions vs. CC (import), Mumbai, 2007 (213) ELT 524 (Tri. Mumbai). (v). Ramana International vs. CC, Nhava Sheva, 2005 (180) ELT 368 (Tri. Mumbai). 5. Learned Counsel further submits that much reliance is placed on a WhatsApp messages said to have been retrieved from a mysterious SAMSUNG 4G LTE mobile; it is not known how such a mobile had come in the hands of the investigation officers, as the source is also not explained; recovery of such mobile is not mentioned in any of the panchanama or statements; when the very genuineness of the mobile phone is in dispute, any information alleged to have been retrieved from it has no evidentiary value, more so when a serious allegation like mis-declaration is alleged; moreover, the data said to have been contained in the phone was not retrieved without following the procedures as required under Section 138C of the Customs Act. 6. Learned Counsel submits that no evidence to prove transaction of amount ove....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ts and Benches of this Tribunal have followed the judgment of Canon India by the Apex court and held that officers of DRI are not proper officers for the purposes of Section 28 of the Customs Act, 1962, and thus SCN was issued beyond Jurisdiction. 9. Learned Authorised Representative, appearing for the respondent department, reiterates the findings in OIO and submits, inter alia, that (i). Existence of the Proforma invoice No.DB2012319 dated 19.03.2012, one of the evidence in this case is beyond doubt as the same was recovered through a proper procedure under Panchanama dated 23.12.2015, from the premises of M/s. Trade well; the second Proforma invoice No.DB-20120607 / 07.06.2012 was recovered during search of the residence of Shri Raghuveer Swami, an associate of Shri Pankaj Jain during the concerned period, on 31.03.2016 under Panchanama; he admitted the fact of importing the 4 machines mentioned in the said Proforma invoice at the rates mentioned therein; adjudication authority has discussed in detail both the relevance and existence of Proforma invoices; submissions made by the appellant are false and baseless; investigation clearly established that the machines dec....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... w.r.t. IMEI no. was established by the DRI; as contents of the phone, emails etc have been accepted by the persons concerned, no separate certificate under section 138C is required. (vi). From the investigation and documents recovered during investigation it has been proved that Shri Tarun Baid was a Hawala operator who transferred the money through Hawala for Shri Pankaj; adjudication authority has discussed that Proforma invoice No.DB2012319/19.03.2012 had details of T/T of USD 8580 already made and adjustment of USD 800 and balance of USD 20200. (vii). Shri Raghuveer Swami started importing the Paper Cup Machines separately in his firm; he admitted the undervaluation & paid the differential duty along with interest and penalty; being an associate of Pankaj Jain and being in similar trade, he was competent to give reliable statement. (viii). 10 customs declarations had been received by the freight & forwarding agencies from shippers in China via email and the same has been submitted by the representatives of the freight forwarders under Section 108 of the Customs Act, 1962; learned counsel of the appellant has failed to submit any convincing reas....
X X X X Extracts X X X X
X X X X Extracts X X X X
....recovered from different premises (third party). (ii) uncertified load port documents submitted by the shipping agents (in India). (iii) WhatsApp messages etc. alleged to have been recovered from the mobile phone. (iv) Statements of individual persons. 12. The appellants have vehemently opposed the genuineness of the evidence, claiming that the same is not procured in a legally tenable manner and contents thereof are not examined by observing due process as per Section 138C of the Customs Act, 1962; the statements recorded were retracted. Coming to the proforma invoices recovered, it has been the allegation of the department that Proforma Invoice No.DB2012319 dated 19.03.2012 relates to Bill of Entry No.7362395 dated 11.07.2012 and Proforma Invoice DB No.20120607 dated 07.06.2012 pertains to Bill of entry No.7741855 dated 23.08.2012.Learned Counsel for the appellant have argued that on comparison of the proforma invoices recovered during the searches, with the commercial invoice supplied along with Bills of Entry, are not matching and there is a difference in the models and the same was not established by the department, and that the department has sim....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e. Therefore, the question of demand of differential duty does not arise. Accordingly, Revenue's appeals deserve no merit, hence it is dismissed. 14. We find that proforma invoice is only an offer letter and does not conclusively establish the transaction. We find that Courts and Tribunals have consistently held that proforma invoices cannot be evidence, at least in themselves. What is material is the transaction value. Revenue is required to prove with evidence that the payments over and above, the price reflected in commercial invoices are actually made. In the instant case the same is absent. Moreover, we find that the adjudicating authority himself observes that there is a difference in the particulars mentioned in proforma invoice, and the invoices submitted along with bills of entry. Therefore, we are of the view that in the facts and circumstances of the case, proforma invoice cannot be a basis for rejection of transaction value, alleging undervaluation. 15. Another set of evidence that the department relies upon - the WhatsApp messages claimed to have been retrieved from a Samsung mobile. The appellants submit that the recovery of the mobile is not recorded in any of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... laid down under Section 138C of the Customs Act. We find that even if cell phone is submitted by Shri Pankaj Jain and the computer printouts were submitted by concerned persons, the provisions of Section 138C are still obligated. On a plain reading of Section 138C, it is seen that the sub-section does not differentiate between the extracts of printouts taken by the officers or submitted by concerned persons or parties. Therefore, we find that the evidentiary value of such printouts is lost in the bargain, looking into the fact that data available in electronic form is prone to manipulation. 17. The adjudicating authority further relies upon the documents forwarded by freight forwarders after obtaining the same from their master in China. Appellants have taken serious objection to the documents urging that same have not been obtained through official channels, through overseas customs network. We find that documents have not been authenticated by Customs authorities at the respective port of export. Interestingly, Learned Commissioner finds that the importer is correct in pointing out that documents in question have not been directly obtained from a Chinese shipper and that thes....