TaxTMI 
TaxTMI 
2022 (4) TMI 948
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....ry 2007 by M/s Crown Lifters, a partnership that was dissolved in 2007, and five consignments of 'used cranes' imported by M/s Crown Lifters Pvt Ltd, of which Shri Karim Jaria was the Managing Director, between 23rd January 2008 and 23rd February 2010. During the investigations, Rs. 1,50,00,000 had been voluntarily deposited towards differential duty on which turns one of the principal claims in the appeal along with dispute on valuation arising from re-determination of assessable value by recourse to rule 3 of Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 for the first set of imports and rule 3 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 for the second set of imports that placed reliance entirely on admission of the individual-appellant herein during the investigations. 2. The appellants herein, along with others, were proceeded against after investigations claimed to establish that the values declared in the bills of entry had apparently followed the convention of applying a rate of Rs. 19 to Rs. 34 per kilogram for 2005-07 and Rs. 40 per kilogram for the period thereafter to the weight of each of the 'used cranes', as a....
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....signments imported by M/s Crown Lifters as the same was issued beyond the period of limitation of 5 years and therefore the proposal to adjust the amount towards duty in respect of such consignments is illegal. It is also submitted that the present proceeding may be limited only to the 5 cranes imported by M/s Crown Lifters Pvt Ltd. I find that in Para 14(xi) of the show cause notice it is mentioned that the amount voluntarily deposited by notice no. 3 during the course of investigation is adjusted against the duty and interest payable on the cranes imported by M/s Crown Lifter which are beyond 5 years.' 3. Narrating the events leading to the de novo proceedings on the disposal of the dispute by the Tribunal on the earlier occasion with specific directions on acceptability of inculpatory statements to be predicated upon challenge in cross-examination and on the disposition of the amount deposited by the importer during the course of investigations, it is contended by Learned Counsel for the appellants that the order of the Tribunal had been observed in its breach by the adjudicating authority. Learned Authorized Representative drew attention to specific portions of the impugned or....
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....herein, that the said deposit was not limited to imports effected during the period of limitation permitted by section 28 of Customs Act, 1962. The Tribunal, in the face of contention of the appellant, had directed that '7....... 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 judgement relied on the Honourable Court of Madras decision in the case of Pilmen Agents (Private) Limited 2000 (12 6) ELT 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.' from which it can be deduced that the impugned order, with its elaboration, is not in breach of that direction. 6. We have held supra that the 'acceptance' of the voluntary payment is beyond the framework of the proceedings as determined by the proposals in the show cause notice and, with....
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....on is disproportionate detriment and without any justification to cause such detriment. Consequently, confiscation of nine 'used cranes' imported by M/s Crown Lifters fails along with the penalties arising therefrom. 8. However, as recovery of differential duty has been proposed for the subsequent imports, M/s Crown Lifters Pvt Ltd is not immune to consequence of evasion of duty liability in the event of undervaluation being established. The sole evidence of misdeclaration of value appears to be the admission in the statement of Shri Karim Jaria and the confessional statement of the illicit fund mover, Shri Brijesh Gala. As in the case of the earlier imports, the actual price of each of the five 'used cranes' has not been ascertained. Reliance on statements alone is too fragile a foundation to build a case of undervaluation; such depositions are reliable only with corroborative support. In the absence of corroboration, test of cross-examination is of essence, as mandated by section 138B of Customs Act, 1962, for relevancy. This was the crux of the direction '7.1 We find that the whole case of undervaluation is essentially based on statements are certain people and the conf....
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....ination. The said submissions are tendered without specifying any grounds/reasons under which the cross examination of the persons as requested by them would be helpful to prove their innocence....' before going on to reject all the requests. 11. It was after going through the re-determination of value, the confiscation and the imposition of penalty that the Tribunal found it fit to reject all the conclusions in the order impugned therein for want of credibility of the statements relied upon in the absence of cross-examination. That order of remand, and its contents, had not been challenged by Revenue in appeal. In such circumstances, it was gross impropriety on the part of the adjudicating authority, and subordinate to the Tribunal, to allege failings in the remand order - the exclusive privilege of the constitutional courts - and reflects his determined obduracy to stand by the first adjudication order. Furthermore, the order now impugned has not relied upon any evidence to corroborate the statements upon which the first adjudication was based. Neither has there been any attempt at ascertainment of the actual transaction value other than by way of the 'confessional statements' ....