TaxTMI 
TaxTMI 
2024 (3) TMI 871
X X X X Extracts X X X X
X X X X Extracts X X X X
....105 15 5 2463584 21/12/10 13.394 1050 770935.57 6 2559230 10/01/11 15394 1050 609320.88 2. The Appellants had imported first two cargos at ICD, Dashrath, Baroda. The said first and second consignments were supplied by M/s Zhejiang Yushi Packing Material Company Limited & M/s. Wenzhou City Huayi Laster Material Company Copies of commercial invoices of both these consignments were provided to the department. In both cases, the value of the cargo was USD 1050 per Metric Ton. As per the appellant, before the import of aforesaid, the Director of the appellant-company had visited China and had met various manufacturers and had entered into negotiations with various parties. It is on the basis of such negotiations that took place that he entered into contract with the aforesaid two suppliers for supply of the said product. With the first party, an oral contract was entered into, for supply of 50 M. Tons at the aforesaid rate. With the second party, a written agreement was entered into for supply of 300 M. Tons to be supplied within one year, also at the same rate. It is in the course of supplies made by these parties that the first two consignments w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....atter, the learned Commissioner confirmed the allegations pertaining to under valuation of goods vide his order which is impugned herein and by which party is aggrieved. 6. The main plank of the appellant's submission is that the initial inculpatory statement (which is main basis of department's case) of Mr. Rameshbhai, director of the company was taken under duress. On record has been placed some medical evidence to support the coercion aspect. The statement was recorded on 13.10.2010 and rejection of the same by affidavit was done by the appellant on 18.10.2010 rebutting that statement having been taken under coercion was not fit for reliance. Same was rebutted by DRI vide its rebuttal letter dated 19.10.2010. Again appellant rebutted, the letter of DRI vide its letter dated October 22, 2010. The rebuttal of the party being to the effect that the statement on 13.10.2010 was taken under coercion when department had failed to get the statement desired by it. It also denied that the so called evidence recovered from their computer by the DRI had anything to do with the valuation of imported goods or that any additional consideration was ever sent by them. It also referred to man ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....was on metre basis, whereas their value was on kg basis and there was no under valuation involved. Regarding scribling at the back of proforma invoice the appellant submitted that as mentioned in the statement, director had no knowledge and could not assign meaning to them. Regarding the evidence that insurance cover taken for CIF value for Bill of Entry No. 2158103 dated 30th August, 2010 was on the higher side. They submitted that 205 cartus were actually imported, however, the insurance policy relied upon by the Commissioner was in relation to 235 cartage and that Bills Of Lading was also not matching. They had produced 240 Bills of Entry assessed at or around same prices. However, Commissioner still held that identical goods are not available while applying valuation rules. 7. Learned AR on the other hand, relied upon Order-In-Original to state that statements were not recorded under duress and were corrected and retraction was delayed and not maintainable and that the adjudicating authority has correctly evaluated the whole evidenced. In rejoinder, appellant supported their submissions by case relied upon as follows:- • 2007 (214) ELT 3 (SC)-COMMISSIONER OF CUS....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... The director Shri. Ramesh K Gidwani could not have agreed to the proforma invoice being the actual price without pressure. As the proforma invoice was related to 'A' grade of goods whereas can be evidence of invoice, the goods were of 'B' and 'C' grade. Therefore, the testimonial evidence relied upon by the department does not merit any consideration, as the same was also retracted by them by way of an affidavit to AD, DRI mentioning the facts of coercion having been exercise while recording their statement on 13.10.2010. The date of such retraction was 19.10.2010 and thereafter, they were being consistently summoned even after their retraction to the office in Surat. That the appellant even took the recourse to intervention by Hon'ble High Court of Gujarat which permitted the recording of statement in presence of advocate in sought distance not hearable evidence. It was submitted by the appellant that the statement recorded thereafter were all ex-inculpatory, thus casting severe doubts on the authenticity of statement dated 13.10.2010. It was submitted by the appellant that attending circumstances have to be seen while examining any statement even under Section 108 and also ther....
X X X X Extracts X X X X
X X X X Extracts X X X X
....no. 1 to 277 were not provided and only documents bearing odd numbers were given. The appellants had specifically demanded documents bearing even numbers. However, the same were not provided. It was submitted to the Ld. Adjudicating Authority that the documents bearing even numbers were in favour of the appellants and hence, the same are not provided. However, this submission is not considered by the Ld. Commissioner and demand is confirmed without providing relied upon documents. Hence, the order is passed in gross violation of principles of natural justice and hence, not sustainable. 8.3 It was also submitted that though the hard disk of the computer of the appellant was seized, statutory requirements to record details pertaining to year of manufacture of computer, model number, the exact location of premises where the computer was kept, were not recorded and most importantly the statement of the person who operated the computer was also not recorded. Hence, the data obtained from such computer is in violation to the provisions of Section 138C of the Customs Act and cannot relied upon as tangible evidence. In this regard, reliance is placed on order of the Hon'ble Tribunal....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gly stand dismissed. 8.6 Reliance is also placed on order of the Hon'ble Tribunal in the case of M/s. Tele Brands (India) Pvt. Ltd. vs. CC Import, Mumbai reported at 2016 (336) E.L.T. 97 (Tri.-Mumbai) wherein in para 3.3 it is observed that statements dated 19.04.2006, 03.05.2006 and 29.06.2006 of Shri Prakashchandra Pandya were recorded, which were retracted vide letter dated 31.07.2006 (para-7). It is observed that such statements having been retracted cannot be considered as confessional statements and cannot be accepted as evidence. Relying on the aforesaid judgements, it is submitted that the retraction of the Director dated 18.10.2010 cannot be held as belated or afterthought and order confirming demand on the basis of statements without considering retraction is bad in law and requires to be quashed and set aside. 8.7 Reliance is also placed on order of the Hon'ble Tribunal in the case of M/s NPT Papers Pvt. Ltd. vs. CC Mundra reported at (2023) 2 Centax 44 (Tri. Ahmd). In the aforesaid order, in para 6.8, this Hon'ble Tribunal has held that once retraction is filed with the Adjudicating Authority, it was incumbent upon the authority to call the person for ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ilar goods at a higher price at around the same time, Unless the evidence is gathered, in that regard, the question of importing section-14 (1A) does not arise, In the absence of such evidence, invoice price has to be accepted as the transaction value. If the charge of undervaluation cannot be supported either by evidence or information about comparable imports, the benefit of doubt must go to the importer. If the department wants to allege undervaluation, it must make detailed inquiries, collect material and also adequate evidence. It is submitted that in the present case, no evidence is produced showing contemporaneous import at higher price. On the contrary, the appellants have provided contemporaneous imports data of other importers and also supply details from the same supplier to other importer in India during the period of importation. The department has not rebutted aforesaid contemporaneous data. Hence, the demand confirmed without considering contemporaneous data is bad in law and requires to be quashed and set aside. For the purpose, reliance is placed on following judgements: (i) CC Calcutta vs. South India Television Pvt. Ltd. reported at 2007 (214) E.L.T. 3 (....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er may have taken insurance of higher value for purpose best known to him. In this regard, reliance was placed on order of the Hon'ble Tribunal in the case of M/s. Agarwal Metal & Alloys vs. CC Kandla reported at 2021 (378) E.L.T. 155 (Tri. Ahmd) in para 11.7, it is held that insurance policies cannot be relied up for confirmation of demand. Relying on aforesaid, it is submitted that order enhancing the value on the basis of proforma invoices is not sustainable and the adjudicating authority ought to have considered the contemporaneous import data pertaining to same goods during relevant period. Further, in absence of proof pertaining to extra payment to foreign supplier, the invoice value could not have been discarded. Hence, the order is bad in law and requires to be quashed and set aside. 12. On the basis of various submission of the appellant viz-a-viz contrarian of the AR, we find that in this case, burden of proof of undervaluation by evidence or information about comparable goods was on the department and same is not adequately discharged as indicated in the ratio of Commissioner of Customs, calcutta vs. South Indian television (P) Ltd., as reported in 2017 (....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as been held by the Hon'ble Apex Court in Eicher Tractors Pvt. Ltd. v. Commissioner of Customs Mumbai - 2000 (122) E.L.T. 321. Merely based on some emails, the transaction value cannot be disputed and negated without any cogent material. 19. Further we find that no copy of the emails on which the Department seeks to rely has been made as RUDs. Emails and other electronic evidence cannot be relied upon to prove undervaluation in absence of compliance of provisions of Section 138C of the Act ibid as held by Anvar P.V. (supra) and S.N. Agrotech (supra). It is trite law that statements can be relied upon only if they are voluntary and true. It can be seen from above that all the statements of the Director Shri H.S. Chadha recorded on 16-7-2014, 25-8-2014, 24-9- 2014, 26- 9-2014, 12-11-2014, are conflicting. There are many such instances in the statements of the appellants which have been brought to our notice by the Ld. Counsel but the Department has picked only those which support it while discarding those which support the appellant. Thus statements of Shri H.S. Chadha cannot be relied upon and given credence to substantiate the Department's claim of undervaluation w....