TaxTMI 
TaxTMI 
2024 (9) TMI 1257
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....ed caps of different non-popular as well as reputed brands like Puma, Nike, Adidas etc. were found. Observing it to be an act of infringement of Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007, the goods were seized vide seizure memo dated 16.11.2017 with Annexure-A thereof indicating the quantity of goods found during investigation. The appellant in his statement has admitted the mis-declaration of the goods as mentioned in Annexure-A. From the further scrutiny of e-mails, separate invoices/documents showing invoice number, invoice date, container number, description of items, quantity etc. against the previous imported consignments during the period 01.03.2013 to 05.02.2018 those were found reflecting the value of imported goods in Chinese currency (RMB) which appeared to be much higher as compared to the value declared in the respective Bill of Entry. 2. The invoices were issued by M/s. Sanyuan Group Holding Co. Ltd., China. The company is admitted by appellant to be its exporter. Comparing those documents revealed that invoices number, invoice date, container number, description of items, quantity etc. were almost same except for the value of the goods wh....
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....n email and therefore, the date contained in the said excel sheet is neither inspiring nor has any probative value, otherwise also, in terms of Section 138C of the Customs Act, 1962, computer printout are admissible in evidence only when the same are taken in accordance with the conditions stipulated therein. In the present case none of the conditions relating to admissibility of such electronic documents had been complied with and therefore, such printout cannot be pressed in evidence being non admissible documents. The data relied upon by the department in itself was not admissible in evidence as it did not satisfy the requirement of Section 138C of the Customs Act, 1962. The appellant has relied upon the following decision: (i) Ambica Orgnics v/s Commissioner of C. Excise & Cus., Surat-2016 (334) ELT 97 (Tri Ahmd) as upheld by Hon'ble Gujarat High Court, (ii). SHIVAM STEEL CORPORATION Versus COMMISSIONER OF C. EX. & CUS., BBSR-II-2016 (339) Ε.L.Τ. 310 (Tri. Kolkata) copy of which is annexed as Annexure A-3. (iii) MAGNUM STEELS LTD. Versus COMMISSIONER OF CENTRAL EXCISE, INDORE - 2017 (358) Ε.L.Τ. 529 (Tri. -Del.). 4.1 Learned counsel impressed ....
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....d with cartoons shown in Bill of Lading. All details of these invoices have been same in the invoices filed with Bills of Entry except for the value of goods and description of goods. 5.1 Shri. Ashish Gidwani has resorted to mis-declaration of value of imported goods using fake and manipulated invoices; He had knowingly or intentionally tendered false statements under Section 108 of the Customs Act, 1962 and suppressed the fact that he had submitted fake invoices for the clearance of the goods; He has also signed wrong declaration of value under Rule 11 of the Customs Valuation (Determination of value of imported goods) Rules 2007 read with Section 46 of the Customs Act 1962. Accordingly he is liable for penal action under Section 114 AA. Accordingly the department rejected the declared transaction value of Rs. 1,89,83,726/- in respect of 23 Bills of Entry filed during the period from 16.09.2013 to 27.09.2017 under Rule 12 of the Customs valuation (determination of value of imported goods) Rules, 2007 Read with Section 14 (1) of the Customs Act, 1962 and re- determine the true transaction value as Rs.10,87,02,770 under Rule 3 of Customs Valuation Rules, 2007. Accordingly, the appe....
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....rmation so contained is derived; (c) throughout the material part of the said period, the computer was operating properly or, if not, then any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of the contents; and (d) the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether- (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that p....
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....n or any other process. 6.2 This provision is arising out of Section 65B of the Indian Evidence Act (the model provision for the admissibility of electronic evidence in judicial proceedings). This section has been dealt with by Hon'ble Apex Court in a recent decision in the case of Arjun Panditrao Khotkar v. Kailash Kishanrao Goratyal reported as 2020 SCC 1. The Hon'ble Supreme Court has clarified that the interpretation of Section 65B. Confusion arose over the scope and ambit of Section 65B as inconsistent views had been taken in three earlier decisions of the Supreme Court as follows (i) In Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473 it is held: That Section 65B is a complete code in itself for the admissibility of electronic evidence and shall not be affected by other provisions of the Evidence Act. It has also been held that - "...if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act." (ii) Shahfi Mohd. v. State of Himachal Pradesh (2018) 2 SCC 801 it is held: That Section 65B is merely a procedural provision, and the....
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....ncy, on the ground that the nomination papers were filed after the stipulated deadline. The Respondents wished to rely on video camera recordings to prove that the candidate had filed his nomination after the stipulated deadline. The Election Commission produced CDs which contained a copy of the video camera recordings, in accordance with the direction given by the High Court. However, the necessary certificates were not produced in accordance with Section 65B(4) by the Election Commission, despite multiple requests made by the Petitioner. During the cross examination, an officer of the Election Commission testified that the video camera recordings were authentic. Based on this testimony, the High Court admitted the evidence of the video recordings even though the certificate in accordance with Section 65B (4) had not been produced. The High Court held that it was satisfied that there was "substantial compliance" with Section 65B, as a competent officer had testified that the video recordings were authentic. 6.7 In this scenario, the Supreme Court had to interpret Section 65B(4) for determining the following issues: * Whether a certificate under Section 65B(4) must be produced e....
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....s dictum should be read by omitting the words "under Section 62 of the Evidence Act." This is because Section 65B is a complete code for electronic evidence and shall supersede other provisions such as Section 62. 6.10 Justice Nariman implies here that it is not necessary to refer to Section 62, as Section 65B(1) itself distinguishes between the original electronic record and the secondary copies of the electronic record. It has been concluded in Arjun Vs. Kailash (supra) case that: If the competent person/entity refuses to grant the certificate, the party who wishes to rely on the electronic record can apply to the Court for an order to produce the requisite certificates. Based on this premise, the Court concluded that the obligation placed by Section 65B(4) was mandatory, and not voluntary, and is a condition precedent before secondary copies of an electronic record can be admitted. It was held that the electronic evidence should be presented before the trial begins, and at any stage prior to the completion of the trial, the Court can direct the production of the certificate under Section 65B(4). The judgment clarifies that requirement of certificate under Section 65B (iv) of th....
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.... higher value of the imported goods than what has been declared by the appellant in the Bills of Entry filed during the period from 16.09.2013 to 27.09.2017. Differential duty demand has been confirmed based on re-determinate of value by the department. This entire investigation got initiated based on the live consignment of Bills of Entry No. 3819893 dated 31.10.2017 being intercepted by SIIB and 1009 examined noticing undervaluation, mis-declaratiion and even violation of Intellectual Property Rights (IPR). Though a separate Show Cause Notice was issued about said Bills of Entry. 6.13 We observe that there is no denial to the following facts: (a) All the imports in the present case are from one supplier in China, as also confirmed by Shri Ashish Gidwani, proprietor of M/s. A.G. Impex. (b) E-mail ID [email protected] has been used by appellant for correspondence. (c) Excel sheets issued by the same supplier have been retrieved in appellant's presence from the proprietor's own mobile phone who signed the also. (d) Excel sheets contain details (consignment wise) about invoice number, invoice date, container no., description of items, quantity and value of imported g....
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....ods mentioned in the invoices/documents recovered through e-mail matches with the invoices attached by the importer with Bills of Entry filed for customs clearance. Hence, we hold that there is sufficient evidence against appellant that the actual invoices have been altered by the appellant to undervalue and mis-declared the imported goods. The act amounts to committing fraud and fraud vitiates everything. Resultantly there is no infirmity in the findings to this effect in order under challenge. 6.17 Regarding invoking of extended period, it is established that the importer has manipulated the invoice presented for clearance of goods and mis declared the value in the Bill of entry by suppressing the actual invoice, which could only be unearthed during investigation. The mis-declaration of value of imported goods is thus apparent and has been done with clear intent to evade customs duty. The importer has violated provisions of Section 17(1) and Section 46 of the Customs Act, 1962 by not filing truthful declarations in Bills of Entry and proper self-assessment. Therefore, for the aforesaid acts of suppression of facts and mis- statement, the extended period of five years for demand ....