TaxTMI 
TaxTMI 
2022 (4) TMI 1214
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....e question of competence of DRI to issue the SCN and will not rely on Canon India and will argue on merits and that the respondent has a very strong case on merits. Accordingly, with concurrence of both sides, this appeal is taken up for hearing for a decision on merits ignoring the jurisdictional issue as it has been given up by the learned counsel for the respondent. 2. This appeal is filed by the Revenue assailing Order-In- Original [Impugned order] dated 19.07.2019 passed by the Commissioner of Customs, Hyderabad Customs Commissionerate, Hyderabad dropping all the proceedings initiated by the Show Cause Notice [SCN] dated 20.10.2018 issued to the respondent. 3. M/s Sachdev Overseas Fitness Pvt. Ltd. [Respondent] , imports fitness equipment from China and Taiwan. Officers of DRI received intelligence that the respondent was evading Customs duties by mis-declaring the value of the goods imported by it and the goods that it imported were being shipped directly from the manufacturer in China but the purchase invoices for a lower value than the manufacturer's price were issued by Shri Durga Prasad Khera [Khera] alias Rajan Khera of Taiwan. 4. Acting on this inte....
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....lues. f) The respondent imported mainly through Inland Container Depot [ICD], Hyderabad, filed 'Into Bond Bills of Entry' and stored the goods in customs public bonded warehouse located in Kompally and thereafter cleared goods from time to time as required. 6. Some of the imported goods were pending clearance at the ICD and some were lying in the Custom bonded warehouse and still some other goods were in the office-cum-godown of the respondent which were examined and thereafter seized. The details are as follows: (i) Fitness equipment imported under B.E. No.4244143 dated 13.02.2016 valued Rs. 57,69,445/- which was pending clearance was seized at ICD, Hyderabad on 09.03.2016. (ii) Fitness equipment imported under BE. No.4244128 dated 13.02.2016 valued at Rs. 59,77,739/- which was pending clearance was seized at ICD, Hyderabad, on 10.03.2016. (iii) Imported goods which were already cleared by the customs valued at Rs. 71,07,973/- were seized at the Office cum godown of the respondent on 14.03.2016 (iv) Imported goods valued at Rs. 5,53,82,470/- which were stored in Custom bonded warehouse were seized on 31.3.2016 in the bonded premises ....
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....nation to sub-rule (2) of Rule 12 of the Customs Valuation Rules, 2007. (iii) As detailed in the SCN, the invoices recovered from the premises of the importer, which were raised by the manufacturer in China on the supplier in Taiwan, indicated a higher value of goods. The goods mentioned in these invoices are found to be exactly the same as the ones imported, as evidenced by the serial numbers. The corresponding packing lists also indicate that the goods received by the respondent were stuffed into containers by the manufacturer and shipped directly from China. As such, for all practical purposes, the value stated in the invoices issued by the manufacturer reflects the value of the imported goods and the SCN details the conspiracy entered into by the importer in routing the invoices through Taiwan for undervaluation. The validity and accuracy of the invoices recovered from the premises of the respondent have not been questioned and contended by the importer before the adjudicating authority. They only contested the relevance of these invoices in, firstly, rejecting the declared value of the importer, and secondly, re- determining the value using the residual method. ....
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....wn against each invoice, which in turn correlates with the set of manufacturer's invoices found in the office premises of the importer. Over and above the value shown in the manufacturer's invoice, it is found that the debit entries are even higher, on account of mark-up by the supplier, as discussed in Para 9.1 (vi) and (vii) of the Show Cause Notice. (vi) The above facts, as laid out in Para 14 of the Show Cause Notice, form the grounds for doubting the accuracy of the declared value, and proposing for rejection thereof under Rule 12 of the Customs Valuation Rules, 2007. (vii) The adjudicating authority at Para 82 of the OIO observed that "The mere ground that the invoice of manufacturer at China, issued to the trader at Taiwan had higher value than the value declared to the Indian Customs cannot be a ground to reject thevalue, particularly when much emphasis was laid down under the Rules on what are the grounds available while considering for rejecting a declared value". Further, at Para 83 that it was held that "......it can be unarguably concluded that none of the ingredients specified under Rule 12 are available in the present import to re-assess the....
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.... the analysis of evidences recovered and hence the same is not arbitrary. (x) In this regard, attention is invited to the decision of Hon'ble CESTAT, Special Bench, New Delhi in the case of "Sai Impex Vs. Collector of Customs, reported in [1992 (62) ELT 616 (Tribunal)] (Page Nos. 18 to 20) wherein the Tribunal held as under: "The best evidence of the price of the imported goods is available and, therefore, it is not necessary to go to other contemporaneous imports of identical or similar goods. In our view, the manufacturer's invoice represents the transaction under Rule 4 of the Rules. Under the amended rule, importer has to produce invoice of the manufacturer. Since, we are of the view that the manufacturer's invoice is genuine document, there is no reason why it should not be acted upon". The Hon'ble Supreme Court affirmed the above view of the Hon'ble Tribunal in the appeal filed by M/s Sai Impex against the Tribunal decision reported in [1996 (84) ELT A47 (S.C.)](Page Nos. 21). In view of the above, the Tribunal's above order, which was affirmed by the Hon'ble Supreme Court, manufacturer's invoice, if available and genuine, is the best evidence of th....
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....tice. The aforesaid agreement cannot be taken into cognizance unless the authenticity of the agreement is verified after thorough investigation, as the same was not provided to the investigating authority. The adjudicating authority, has not given any findings / basis for taking such agreement into consideration and deciding the case by solely relying on the same and dis-regarding the variegated evidences both documentary as well as depositions which was brought out in the SCN. (xiii) Another piece of evidence corroborating the undervaluation was the presence of Statements of Accounts in the pen-drive recovered during the search proceedings at the residential premises of Shri Prem Kumar Sachdev, Authorized Signatory of M/s. SOFPL on 03.03.2016. The adjudicating authority in Para 89 of the OIO held, that the party has contended that they were not provided with any analysis report, and in Para 90 of the OIO that in the absence of evidence that the data so collected from the third agency was shared with the importer, it cannot be said that the principles of natural justice were followed by the investigating agency, who failed to share the data with the importer. The adjudicat....
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....egee Sales Pvt. Ltd who is one of the dealers. (xvii) Further, Sri Davinder Pal Narang identified the name of "Sarada" appearing in the Statement of Accounts as wife of Shri RajanKhora. Thus, it is evident that the names mentioned in the Statement of Accounts are related to the importer. Moreover, Davinder Pal Narang in his statement dated 23.09.2016 has admitted that he had travelled to Taiwan and China several times to attend exhibitions pertaining to fitness equipment on behalf of Shri Prem Kumar Sachdev and has also attended Shri Rajan Khera's son's marriage in Chandigarh. This goes on to indicate that the persons mentioned in the Statement of Accounts retrieved from the pen drive recovered at the residence of Shri Prem Kumar Sachdev are not alien to M/s SOFPL. Sri Prem Kumar Sachdev in his written submission admitted that the pen drive was recovered from his residence. It is for Sri Prem Kumar Sachdev to explain the contents of the pen drive found from his residence and the burden of proof shifts on him to explain the same. (xviii) The adjudicating authority, in Para 85 of the OIO, held that it has not been proven beyond reasonable conclusion that "Sr....
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....ions as to evidence relating to electronic record: The contents of electronic records may be proved in accordance with the provisions of section 65B." (d). Section 65B reads as follows: "65B. Admissibility of electronic records: (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: - (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the ....
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....ained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity; (iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and (iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity". (xx) However, the Learned Adjudicating Authority did not consider the digital evidence extracted by the Central Forensic Laboratory, Hyderabad holding that the same was not shared with the importer and violative of principles of natural justice. (xxi) Shri Prem Kumar Sachdev, in his written submissions stated that admissions of undervaluation in the Panchnama dated 09.03.2016 and 10.03.2016 are hearsay. This averment of the importer is far from the truth. The two seizure Panchnamas are proceedings narrated by the Panch witnesses and also signed by Sri Prem Kumar Sachdev himself. He ....
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....visions of section 138C of the Customs Act. The fact that all documents were received through bank and all remittances were also made through bank and there is no evidence of any cash generation as certified by the Chartered Accountant cannot be ignored. d) Without prejudice to the inadmissibility of the evidence, the percentage of undervaluation was also calculated in the SCN for the period beyond 20.10.2011 to 21.10.2014. The period of dispute is 2011 to 2016 and all the calculations beyond 21.10.2014 were not even based on the inadmissible evidence of the file in the pen drive and merely based on assumption of undervaluation. e) Even if the invoice value is rejected on suspicion based on the entries in the pen drive, valuation has to be done sequentially as per the Valuation Rules. This was not done on the ground that there were no imports of identical or similar goods during the relevant period. This was a wrong claim and the respondent disproved it by producing evidence of imports of similar goods. This evidence has not been rebutted. f) The entire investigation by the DRI is too meager to establish any undervaluation of goods. g) There was ....
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.... premises of Shri Sachdev of the respondent and recovered a pen-drive at his residence which was sent to the Central Forensic Laboratory who retrieved its contents in the form of an EXCEL file. It is also the case of the Revenue that during searches they retrieved some invoices of the original manufacturer from China raised on Khera's companies in Taiwan and the corresponding invoices raised by Khera's companies on the respondent for the same goods sent by the same consignment. The packing list, the container number, name of the vessel, the date of sailing, etc. are the same in both sets of invoices. The invoice raised by the manufacturer in China on Shri Khera's companies is for a higher value and the corresponding invoice raised by Shri Khera's companies on the respondent was for a lower value. Samples of corresponding invoices were pasted in the SCN. The manufacturer's invoice reflects the correct transaction value and the invoice raised by Shri Khera for a lower value on the respondent is only meant to declare a lower value and pay less Customs duty. According to the Revenue, the respondent paid to Shri Khera's companies, the amount declared in the invoice through banking chann....
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.... export from India for delivery at the time and place of exportation, where the buyer and seller of the goods are not related and price is the sole consideration for the sale subject to such other conditions as may be specified in the rules made in this behalf: Provided that such transaction value in the case of imported goods shall include, in addition to the price as aforesaid, any amount paid or payable for costs and services, including commissions and brokerage, engineering, design work, royalties and licence fees, costs of transportation to the place of importation, insurance, loading, unloading and handling charges to the extent and in the manner specified in the rules made in this behalf: Provided further that the rules made in this behalf may provide for,- (i) the circumstances in which the buyer and the seller shall be deemed to be related; (ii) the manner of determination of value in respect of goods when there is no sale, or the buyer and the seller are related, or price is not the sole consideration for the sale or in any other case; (iii) the manner of acceptance or rejection of value declared by the importer or exporter, as....
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....aluation has to be done on the basis of the transaction value and not based on any fixed value. If there are a hundred transactions between the importer and the overseas seller at different prices, for each transaction, the value under section 14 shall be that transaction value. Simply because the price is higher in any particular transaction, such price cannot be applied to other transactions to determine duty. Conversely, the importer cannot claim to pay duty on a lower value than the transaction value in any consignment even if other consignments were sold to the same importer by the same overseas supplier at lower prices. Valuation has to be done for each import as per that transaction value. There is also no provision to take the average price to determine the duty if the transaction values are available. 15. The first proviso to sub-section 1 of section 14 provides for some additions to the transaction value which are not relevant for the present case. The second proviso to this sub-section provides for Rules to be made in this behalf to provide for: a) the circumstances in which the buyer and the seller shall be deemed to be related; b) the manner of det....
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.... value, i.e., based on the cost of raw material, cost of manufacture, reasonable profit, etc. In view of Rule 6, the importer may choose the computed value without examining the feasibility of determining value through deductive methods. Rule 9 is a residual method which provides for determining the value where it cannot be determined under Rules 3 to 8. Rule 10, as already discussed, provides for some costs to be added to the transaction value if the valuation is done as per Rule 3. Rule 11 requires the importer to make a declaration. Rule 12 lays down the provision for rejection of transaction value. Rule 13 provides for interpretative notes for the Rules. 19. To sum up, valuation has to be done sequentially as follows: a) If a tariff value is fixed by the Board, it is the value (sub- section 2 of Section 14); b) If no tariff value is fixed by the Board, valuation is as per the transaction value, if necessary, with some additions (as per the first proviso to sub-section 1 of section 14 and as per Rule 10); c) If the transaction value is rejected as per Rule 12 by the proper officer, valuation has to be done as per the value of identical goods (Rule 4....
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....transaction value; where the declared value is rejected, the value shall be determined by proceeding sequentially in accordance with rules 4 to 9. (ii) The declared value shall be accepted where the proper officer is satisfied about the truth and accuracy of the declared value after the said enquiry in consultation with the importers. (iii) The proper officer shall have the powers to raise doubts on the truth or accuracy of the declared value based on certain reasons which may include - (a) the significantly higher value at which identical or similar goods imported at or about the same time in comparable quantities in a comparable commercial transaction were assessed; (b) the sale involves an abnormal discount or abnormal reduction from the ordinary competitive price; (c) the sale involves special discounts limited to exclusive agents; (d) the mis-declaration of goods in parameters such as description, quality, quantity, country of origin, year of manufacture or production; (e) then on declaration of parameters such as brand, grade, specifications that have relevance to value; (f) the fraudulent or manipulated ....
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....m Taiwan Suppliers does not represent the true 'transaction value' and is liable to be rejected in terms of Rule 12 of the Customs Valuation Rules on the following grounds:- i) Manufacturer's invoices of the Chinese manufacturer, in respect of the goods imported by M/s SOFPL, recovered during the search of their office premises, pertaining to the period ranging from 2011 to 2016, show much higher value of the imported goods as compared to the correspondent invoices of the Taiwan suppliers. ii) The statement of accounts contained in the pen drive and retrieved on forensic analysis covering the period from 21.10.2011 to 25.12.2104 show debit entries of a higher value than the one declared to Indian Customs. It also shows entries reflecting payments in addition to the payments through banking channels. iii) Shri Prem Kumar Sachdev has admitted to the under- valuation of goods imported by M/s SOFPL from Taiwan suppliers in his statements read with Panchnama dated 09.03.2016. He has expressly admitted that the value declared to the Indian Customs, for the goods imported by M/s SOFPL from Taiwan suppliers represents merely 35% to 45% of the actual value. ....
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....ct of the consignments figuring in the statement of accounts contained in the pen drive recovered from the residence of Shri Prem Kumar Sachdev, the debit entries made against each invoice appears to be the amount actually paid or payable by M/s SOFPL to Taiwan suppliers and consequently represents the true transaction value. 15.2 The details of total imports made by M/s SOFPL for the period from 21.10.2011 to 26.02.2016 was compiled and reconciled with the customs database and is provided in Worksheet-I appended to this show cause notice. Worksheet-Ishows the total imports made by M/s SOFPL for the period from 21.10.2011 to 26.02.2016. The total declared value to Customs is USD 2,35,96,022/- (Rs. 1,44,06,42,474/-). The total duty paid is Rs. 41,79,72,002/-. 15.3 Worksheet-II has been compiled based on the evidences contained in pen drive in excel file titled '2012- 2013 PS' and covers invoices starting from date 12.09.2011 to 25.12.2013. This is the statement of accounts for the transactions between the Taiwan suppliers and M/s SOFPL. The values mentioned against each invoice appear to be the true transaction value inasmuch as this is the amount paid/payable by M....
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.... to be paid by M/s SOFPL works out to Rs. 2,44,92,805/-. 15.7 The invoices of the Chinese manufacturers are ranging over a wide period from 09.11.2011 to 02.02.2016. The invoices submitted to Indian Customs declare about only 60% to 70% of the value shown in the Chinese manufacturer's invoices over the past 5 years. From the values available over this long period it appears that there is a consistent suppression of value to the extent of 30%to 40% on the values contained in the Chinese manufacturer's invoices. Hence inference can be drawn that there has been suppression of values by M/s SOFPL for all the imports of fitness equipment made by them, even where the Chinese manufacturer's invoices are not available and which are not covered by the said statement of accounts. The values contained in the statement of accounts obtained from the pen drive also support the fact that the import of fitness equipment by M/s SOFPL is consistently under-valued. Thus the values based on these evidences can be adopted for the imports of fitness equipment made by M/s SOFPL for which no direct documentary evidence is forthcoming. 15.8 Accordingly, Worksheet-IV has been compiled arri....
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....ties. If one is found to have undervalued goods in one case, inference cannot be drawn that he has undervalued in all other imports as well. Penalties and pecuniary liabilities based on extrapolation is, in our considered view, impermissible and is inconsistent with the legal principles known to us. For example, if a suspect is caught stealing a wallet on a day, he can be prosecuted for that crime but it cannot be presumed, without any evidence, that given the character of the suspect, he must have been stealing a wallet everyday and prosecute him for several thefts. If an unscrupulous government employee is caught accepting a bribe of Rs. 5,000/- to process a file, he can be prosecuted for corruption to that extent. However, he cannot be prosecuted by extrapolating that since he handled 200 similar files and must have accepted Rs. 5,000/- as bribe in each case and therefore must have taken bribes totaling Rs. 10,00,000/-. If income tax department discovers that an assessee had under-reported his income by 30% in one financial year, it cannot presume, that given his nature, he must have similarly underreported 30 % of his income for the past five years. If Central Excise officers f....
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....In other words, the trader companies in Taiwan are in the business of running their business so as to incur a loss of 30% in every transaction. This is sufficient reason to doubt the truth and accuracy of the invoices issued by them as no prudent man will run his business so as to lose 30% on each and every transaction more so, when they are back-to-back deals and not where the trader has some old stock left which he clears selling at a price below his purchase price. The submission of the learned counsel for the respondent before us is that they are getting a quantity discount as per the agreement with the trader in Taiwan whereby they get the goods at a price 30% lower than the manufacturer's price. Trade discount is a common business practice to encourage larger purchases. The seller gives a discount in the price so as to increase volumes of sale. Trade discount can take various forms but all have one objective- increase the sales so that even though the seller loses some profit on each item sold, the overall profits are higher because of larger volumes and he also increases his market share. However, the trade discount is not given so as to lose money on each transaction. Great....
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.... of the case, it is evident that the pen-drive was recovered from the residence of Shri Sachdev who was asked by the officers about the authorship of the EXCEL file and he said in his statement that he does not remember as to who the author of the statement was. The authorship of the EXCEL file is under the exclusive knowledge of Shri Sachdev from whose residence the pen-drive was seized and if he refuses to explain as to who the author was, the officers cannot be faulted for it. It is impossible for the officers to establish the authorship of the EXCEL file when it is in the exclusive knowledge of Shri Sachdev. It also does not matter whether the pen-drive belongs to Shri Sachdev or not. He may have owned it or borrowed it from someone. Learned counsel's submissions that the pen drive does not belong to the respondent cannot be accepted. It is undisputedly, recovered from Shri Sachdev's residence by the officers. In his statement, Shri Sachdev said that he does not remember who the author of the EXCEL file was. He did not say that it was not recovered from his residence or that it belonged to somebody else and was only found in his home during search for some reason. It is inconce....
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....overed from the residence of Shri Sachdev. We do not find any other evidence or statements to corroborate the cash payments and therefore find insufficient evidence to establish such payments. 32. Learned counsel argues that the pen-drive is not admissible as evidence in view of Section 138C of the Customs Act, Section 65B of the Evidence Act and Section 3 of the Information Technology Act, 2000. These read as follows: Indian Evidence Act, 1872 Section 65B. Admissibility of electronic records.- (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to i....
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....nvolved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section,- (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the cours....
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....reinafter referred to as a "computer printout"), if the conditions mentioned in sub-section (2) and the other provisions contained in this section are satisfied in relation to the statement and the computer in question, shall be deemed to be also a document for the purposes of this Act and the rules made thereunder and shall be admissible in any proceedings thereunder, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in sub-section (1) in respect of a computer printout shall be the following, namely :- (a) the computer printout containing the statement was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, there was regularly supplied to the computer in the ordinary course of the said activities, information of the kind contained in the statement or of the kind fro....
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.... be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section, - (a) information shall be taken to be supplied to a computer if it is supplied there to in any appropriate form and whether it is so supplied directly or(with or without human intervention) by means of any appropriate equipment; (b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; (c) a document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation . - For the purposes of this section, - (a) "computer" means any device that receives, stores and processes data, applying stipulated processes to the information and supplying results of these processes;....
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....so Bruno, being per incuriam, does not lay down the law correctly. Also, the judgment in Shafhi Mohammad and the judgment dated 3-4-2018, do not lay down the law correctly and are therefore overruled. b) The clarification referred to above is that the required certificate under Section 65-B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the device concerned, on which the original information is first stored, is owned and/or operated by him. In cases where the "computer" happens to be a part of a "computer system" or "computer network" and it becomes impossible to physically bring such system or network to the court, then the only means of providing information contained in such electronic record can be in accordance with Section 65-B(1), together with the requisite certificate under Section 65-B(4). The last sentence in para 24 in Anvar P.V. which reads as "... if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act ..." is thus clarified; it is to be read without the words "un....