TaxTMI 
TaxTMI 
2025 (11) TMI 135
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....ia and have mis-declared the impugned goods to be of Malaysian origin in order to evade payment of anti-dumping duty (ADD). In pursuance of the said intelligence, searches were conducted at several premises of various importers, CHAs and shipping lines, leading to the seizure of documents and the impugned goods stocked in the godown etc. Statements were recorded from the concerned persons and on culmination of the investigation a Show Cause Notice (SCN) dated 18.2.2016 was issued for the differential duty in respect of goods imported. Confiscation of goods seized and also cleared were proposed along with penalties. After due process of law, the Ld. Commissioner of Customs vide the impugned order upheld the proposals in the SCN. Hence the appellants are before this Tribunal. 3. Shri T. Chezhian, Ld. Advocate appeared for Shri Manoj Arjun Gore and Shri M.N. Bharathi, Ld. Advocate appeared for M/s. Calcutta Canvas Co. and Smt. O.M. Reena, Ld. Authorized Representative appeared for the respondent. 3.1 Shri M.N. Bharathi, Ld. Advocate submitted that the allegation against the appellant was that they had imported PVC flex banners manufactured in China and routed the same through Ma....
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.... C) Alfakrina Exports v. Mundra, [2023(9) TMI 86 (Cestat, Ahmedabad)] - Without following the due procedure to verify the certificate of origin, the authorities could not disregard it based merely on the bill of lading and the authorities had thereby failed to follow the procedure under Rule 9 of the Customs Tariff Rules, 2011 with respect to verification of the Certificate of Origin. D) Kiran Kotak and Co. v. Commissioner of Customs, Mundra, [2024 (389) E.L.T. 203 (Tri.- Ahmd.)] - Procedural lapses by customs authorities can lead to the invalidation of duty demands and penalties. Clear evidence is required to prove suppression or misdeclaration for invoking extended limitation periods or imposing penalties. E) D.R. Soneta and Sons v. Commissioner of Customs (General and CFS Mulund), NCH, Mumbai, [2023 (385) E.L..Τ. 234 (Tri.- Mumbai)] - This judgment underscored that the authorities must provide substantial evidence to establish the origin of goods when imposing anti-dumping duties. Indirect evidence, such as pamphlets not directly linked to the consignment, is insufficient to determine the origin of goods. He further stated that a similar matter ari....
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....ority did not consider the request for cross examination of the importers and few officers of Customs, who are in charge of the clearance of consignments. Thus the order suffers with violation of principles of natural justice and hence no penalty is imposable against him. He prayed that for the foregoing reasons, the penalty imposed on the appellant is liable to be set aside. 3.3 Smt. O.M. Reena, Ld. Authorized Representative for the respondent-Revenue took us through the impugned order. She stated that the facts of the case show that the appellants were implicitly involved in the fraudulent activity which would have led to a loss to the exchequer and hence the appeals may be discussed. 4. We have heard the parties and have carefully considered the appeal. 5. The appellant has referred to judgment of this Bench in the case of M/s. Tech Zone Global Trading (supra). We find that in the said case a similar matter relating to the import of PVC flex banners of Chinese origin through Malaysia with the help of one Shri Manoj Arjun Gore of M/s Topaz Plastic Industries (M) SDN BHD, Malaysia and Mr Goh, was examined. The issue of the COO certificate being not genuine was raised. The....
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....incomplete facts placed before him on the basis of a mere statement, when no enquiries were made regarding the authenticity of the certificate from the authorities in Malayasia and only a statement by Shri Manoj Gore of the role of Shri Goh in procuring a false certificate etc. The Hon'ble Supreme Court in Smt. J. Yashoda Vs. Smt. K. Shobha Rani [AIR 2007 SC 1721], stated the 'Rule of Best Evidence' as the rule which is the most universal, namely that the best evidence, the nature of the case will admit shall be produced. 'So long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it.' Although a strict compliance of the Evidence Act will not apply to a quasi-judicial proceedings, on the scale for evaluation of evidence, a certificate issued by an authorised entity carries more value than an allegation in a third-party statement or of documents that are not correlated to the BE's. 6.3 Revenue has relied on the judgment of the Hon'ble High Court of Gujrat in Trafigura India Private Ltd Vs UOI [2023 (12) TMI 196 - GUJARAT HIGH COURT] to support their stand. It has been stated that the substan....
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.... on the judgment of the Apex Court in the case of Anvar P.V Vs P.K. Basheer [(2014) 10 SCC 473] and CESTAT, in the case of Junaid Kudia [2024 (16) Centax 503 (Tri-Bom)] along with S.N. Agrotech and others [2018 (4) TMI 856 CESTAT, New Delhi]. 10. We find that in Anvar P.V. (supra), a three Judge Bench of the Hon'ble Apex Court, held that any documentary evidence sought to be produced from an electronic record under the provisions of the Evidence Act 1872, (Evidence Act) can be proved only in accordance with the procedure prescribed under Section 65B therein. The judgment held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record. Oral evidence in the place of such certificate will not suffice as Section 65B(4) is a mandatory requirement of the law. The judgment is of relevance to this case as section 138C of the CA 1962 is pari materia to the said section 65B of the Evidence Act. Hence a written certificate under section 138C(4) is a sine qua non for admissibility of such electronic evidence under the CA 1962 also. 11. Consequent to the judgment in Anvar P.V. (supra), some confusion....
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....e to yield to section 138C of CA 1962 which is a special provision relating to the admissibility of such documents. This is because Generalia specialibus non derogant, a special section will always prevail over the general sections of the Act. Consequently, the evidence in the form of computer print-outs etc. can be admitted, as in the present proceedings, only subject to fulfilling the conditions under section 138C as evidenced by the certificate issued by a responsible person under sub-section (4) of the said section. We find that, the lack of such a certificate is fatal to revenues case and the portion of the order relying on such evidence is liable to be set aside." In the light of the legal position much of the relied upon documents cannot be admitted as evidence. 7. As regards the valuation of the goods, reliance has been placed on documents/ invoices retrieved from electronic devices which have been found inadmissible as evidence as discussed above. Further in other cases the transaction value has been arrived at by converting the net weight in terms of square meter (SQM) using the factor grams per square meter (GSM) as per Rule 4 of the Valuation Rules 2007. We do not....