TaxTMI 
TaxTMI 
2025 (5) TMI 1931
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....peals) is of one page only and has five paragraphs. It is, therefore, considered proper to reproduce the entire order: "M/s. Orion International, BM-2, Dilkhush Industrial Area, GTK Road, New Delhi (hereinafter referred to as appellant-1) and Sh. Ashutosh Goenka, Partner of M/s. Orion International, BM-2, Dilkhush Industrial Area, GTK Road, New Delhi (hereinafter referred to as appellant-2) against Order-in-Original No.40/SMA/ADC/2012 dated 30.10.2012 passed by the Additional Commissioner of Customs (Preventive), Preventive Commissioner ate, New Delhi vide C.No. VIII/Cus.Prev./Adj./ADC/Orion/05/2011. 2. Acting upon information that the appellant is under valuing the physical fitness equipment (imported), the preventive Commissionerate investigation. During the course of investigation, the importer voluntarily state that he has been undervaluing import consignment to the tune of 40-50 per cent of the actual value. Further the officer recovered the correct invoices and found that value to the tune of Rs.1.29 Crores had been short leavy at the import during last five years w.ef. 2006. The department taken up cases of 26 Bills of Entry and in 8 Bills of Entry, original invoices cou....
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....the Commissioner (Appeals) has not even considered the manner in which the so called "correct supplier invoices" were recovered. In fact the Commissioner (Appeals) has proceeded to confirm the demand of differential customs duty on the basis of the statements made by Ashutosh Goenka under section 108 of the Customs Act. Even the contention of the appellant that the said statement was taken under coercion has not been considered for the reason that he is silent about the recovery of the invoices from his premises. 5. The order passed by the Commissioner (Appeals) has been reproduced in the entirety only to emphasise that this was certainly not the manner in which the Commissioner (Appeals) should have dealt with the appeals that were filed before the time. 6. It is for this reason that the order passed by the Additional Commissioner of Customs (Preventive) on 30.10.2012 has to be perused. In connection with undervaluation of the imported goods, the officer observed that the appellants had undervalued the goods by submitting fake invoices to the department at the time of import. This is for the reason that "the scrutiny of the Hard Disk resumed from the premises of the firm, ....
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....,45,680/- as detailed in Annexure B to 'the Notice'is recoverable from them under the provisions of Section28(1) of Customs Act, 1962 along with interest due thereon under Section 28AB of 'the Act' ibid. During investigations, M/s Orion International, has already deposited an amount of Rs.22,00,000/- voluntarily towards partial discharge of their duty liability." 8. Regarding the invocation of the proviso to section 28(1) of the Customs Act, the Additional Commissioner has not recorded any finding. 9. It transpires from the panchnama dated 26.10.2009 that one laptop and one portable hard disk and one dongle were resumed by the officers on 26.10.2009. There is no panchnama recording the taking of the print outs from the portable hard disk and in this connection all that has been relied upon is the statement of Ashutosh Goenka made on 10.02.2010 in which in reply to question no. 3, he stated: "Today i.e. 10.02.2010, I have been shown the printouts of invoices in two sets taken out from out premises on 26.10.2009. I admit that these are the same printouts which were taken out on 04.11.2009 from the said hard disk in my presence and I indentify my signatures today i....
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....ur- Excise Appeal No. 51148 of 2020 decided on 01.04.2025. After a consideration of the various decisions of the High Courts and the Tribunal, the Division Bench observed as follows:- "28. It, therefore, transpires from the aforesaid decisions that both section 9D(1)(b) of the Central Excise Act and section 138B(1)(b) of the Customs Act contemplate that when the provisions of clause (a) of these two sections are not applicable, then the statements made under section 14 of the Central Excise Act or under section 108 of the Customs Act during the course of an inquiry under the Acts shall be relevant for the purpose of proving the truth of the facts contained in them only when such persons are examined as witnesses before the adjudicating authority and the adjudicating authority forms an opinion that the statements should be admitted in evidence. It is thereafter that an opportunity has to be provided for cross-examination of such persons. The provisions of section 9D of the Central Excise Act and section 138B(1)(b) of the Customs Act have been held to be mandatory and failure to comply with the procedure would mean that no reliance can be placed on the statements recorded either un....