TaxTMI 
TaxTMI 
2023 (8) TMI 1294
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....en of India origin. 2. The officers of DRI located the relevant Bill of Entry No.176959 dated 19.04.2006 along with the commercial invoice for MDF boards where the value was shown as USD 10,888.10 for the consignment imported in the containers. Accordingly, detailed investigations were conducted at Chennai VR marketing office. 15 consignments of MDF boards imported by M/s. Ply Point from Green Panel Products (M) SDN BHD, Malaysia were taken up for detailed scrutiny. The godown of the importer at Cochin was searched and the officers seized 2169 numbers of MDF boards. Detailed investigations conducted by DRI; several incriminating documents were found and after recording statements from various individuals, notice was issued rejecting the declared value of the MDF boards in the above 15 consignments and for re-determination of the value at Rs.1,61,16,901/- (CIF) under Rule 4 of the Customs Valuation Rules, 1988 read with the Section 14 of the Customs Act, 1962. Differential duty was demanded along with interest invoking provisions for confiscation under Section 111(m) of the Customs Act, 1962, and penalty under Section 114A of the Customs Act, 1962. 3. The Commissioner vide imp....
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....r who had conducted investigation could not be completed since he did not appear for further cross-examination nor did he produce certain material documents which he was directed to be produced - stating that he has been transferred to Mumbai. It is stated that the statement of Shri Sathyanarayana as well as an e-mail statement received in his e-mail ID from Principals at Malaysia are inadmissible as he committed suicide and was unavailable for cross-examination. Referring to Section 32(2) of the Indian Evidence Act, they claim that Shri Sathyanarayana's statement was extracted from his memory. The statements show that all negotiations took place between the Malaysian Party and the Traders to which Shri Sathyanarayana was not a party and he merely stated that "Shri Rajeshwara Rao will negotiate the price and the terms regarding undervaluation and payments of declared amount and differential amounts with the customers". 4.3 With regard to the email recovered on 21.04.2006, they submit that the contents of email cannot be relied upon for the reason that the same does not contain any authentication by the officer who is alleged to have recovered the same but contains only the signa....
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....ion. Section 138B reads as follows: Relevancy of statements under certain circumstances (1) A statement made & signed by a person before any gazetted officer of customs during the course of any enquiry or proceeding under this act shall be relevant for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains- (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, is kept out of way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable; or ----- Section 32 of the Indian Evidence Act states as follows: Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. -- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are t....
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....the computer of Shri Sathyanarayana, certain documents which were inculpatory of the appellant was found. These documents indicated that the price was higher than the price quoted by the appellant at the time of import. An email was sent to Shri Sathyanarayana by Shri Ramachandran (Rajesh), Managing Director of VR Marketing Co., which is corroborated by the statement given by Shri V. Habeeb Rahiman on 15.6.2006. The email and the documents recovered from Shri Sathyanarayana's computer categorically show the prices of the imported goods were different from what was quoted in the Bill of Entry and this fact was corroborated by Shri V. Habeeb Rahiman and these documents were found and seized from the office of M/s. V R Marketing at Chennai on 21.04.2006. Shri Sathyanarayana in his statement admitted under-invoicing of the goods supplied by a trading company in the name of Green Panel Products. Shri V. Habeeb Rahiman, Proprietor of Ply Point, his statement was recorded on various dates on 25.04.2006 and 5.5.2006. It is also seen that at a later date when the proprietor was issued summon and called for recording his statement, he filed an anticipatory Bail Application No.3396 of 2006 in....
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....man after the retraction has categorically mentioned about the Chennai office of V R Marketing and their dealings with them as below: "..... I have again, now seen all these documents signed by me and the Mahazar prepared on 21.4.06 at Chennai V. R. Marketing Office in the presence of witnesses and print-out copies of e-mails recovered as also the statement recorded from Sathyanarayana, Manager of Chennai Office of V. R. Marketing recorded on 21.4.06 under Sec. 108 of the Customs Act and once again these were read over and explained to me by my Accountant Ahamed Nizar. I have seen all the above documents and I am convinced." 10. Accordingly, it is very clear that these under invoiced documents were unearthed only after detailed investigation. Retraction is an "after thought" only to avoid and evade payment of duty. Section 114A, which reads as under :- "114A. Penalty for short-levy or non-levy of duty in certain cases.- Where the duty has not been levied or has not been short-levied or the interest has not been charged or paid or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any willful mis-statement....
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....thorities or with the Tribunal or with this Court to reduce the penalty. However, the Tribunal, which had no jurisdiction, had proceeded to reduce the penalty from Rs. 59,77,432/- to Rs. 5,00,000/-. Whatever is the reason given by the Tribunal, it is not necessary for us to go into the said question because the question is, whether there is any jurisdiction left with the Tribunal to reduce the penalty. The law on the point is now well settled. Once the authorities decide to impose penalty, no discretion is left in the matter of imposing of penalty except as provided under law. Even the Tribunal also has not been vested with any power to reduce the penalty, which is imposed by the authority as prescribed under law, and therefore, the order passed by the Tribunal reducing the penalty is one without jurisdiction and, accordingly, it is hereby set aside. The substantial question of law is answered in favour of the Revenue Authorities and against the assessee". Therefore, penalty under Section 114A is upheld." 11. Based on the facts and circumstances discussed above, the goods are liable for confiscation and accordingly, the confiscation is upheld in all the 15 Bills of Entry. The Hi....
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.... MIDE en 10 BEST MADE 181341 CP HE HA 55 52965 M 2500 Kar 19 28090 • 20 MSN IRMING 25 1 M W PH SP P 532515 5/2514 458 9044 STEAD AS wh 2005 OF 194 HELD O 55/2514 F SP HONGSO 11051 0553-300 45004 92 B14 1885 CP 7 W B PYPRIN STANT SO 86013 не NS SUPER 60 Nivery ww 1 P2D RIEN S 8 215/4028 4/03 SHOE SI SAIN DO DA 1206 9/274 NSK 52 885940 NASX 30 # 173 8733 1570 12/ 149 IRASS 13% 30141 30 IRSING DONAS Pyfull " 15% Document 3 funds NO AND ST 1291 2015 1201 1857223 NE 24 WIT-SY 19 1254 . SAS ATS App 301206 T M 10008 od 1 114 587 STAN . 183 MLE 2 24 23 320 229 PD 291205 BEB C SHOTTED BURS 3143 " RZESK M of 5 4 20 SHERISH 21 163421 S $1492.71 • APA Ot W20 2525 KS 12813 159 S " R303463 PLE Te M 2020 STR CE $540 E BX NAL WAN 3120 A 43333 $380015920 SOU S WILM 30....