TaxTMI 
TaxTMI 
TaxTMI 
2025 (12) TMI 383
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....hat the appellant is the sole proprietor of M/s Tek Chand International, Delhi and had imported silk fabrics from china through Seaport Chennai, ICD Delhi; and JNPT Nhava Sheva and IGI airport New Delhi and appears to have resorted to under valuation in respect of 153 bills of entry and over valuation in respect of 64 bills of entry in order to avoid customs duty and anti-dumping duty pursuant to an investigation, the Directorate of Revenue Intelligence, New Delhi conducted searches at various premises including the residential premises of one Shri Omkar Nath. A laptop belonging to the appellant was seized from the said residential premises and from which the investigating agency retrieved certain documents in the course of investigation. In the course of investigation statements dated 20-06-2007 was recorded from the appellant. From the investigations it appeared that the appellant had imported silk fabrics in the name of his firm from various Chinese suppliers from May 2005 onwards by resorting to both under valuation and over valuation of the silk fabrics imported from China during different periods. Investigation culminated from issuance of show cause notice dated 20.02.2009 al....
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....the Customs Act, 1962. By adopting aforementioned modus operandi of under-valuation, M/s. Tek Chand International, Delhi has evaded Customs Duty leviable on such imports of silk fabrics from China. The differential Customs Duty leviable after re-determining the correct transaction value works out to be evaded by of willful mis-statement way Rs.1,88,90,986/- which and suppression of facts. Accordingly, the differential duty amounting to Rs.1,88,90,986, is required to be recovered under Section 28(1) of the Customs Act, 1962, by invoking the proviso to said Section and Section 12 of the Customs Act 1962. 4. During the adjudication proceedings, the appellant through repeated correspondences requested for the laptop to be returned, so as to enable him to defend the allegations in the show cause notice. However the same was not returned and the impugned order was passed ex-parte. Aggrieved by the same the appellant having preferred this appeal is now this forum. 5. Shri. T. Viswanathan, along with Shri. Yogesh Srinivasan and Shri Rohan Muralidharan, Ld. Advocates appeared on behalf of the appellant and submitted as under:- a) The laptop which has been the very basis on wh....
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....E.L.T. 247 (Bom.) 6. Shri. T. Vishwanathan, Ld. Counsel, further submitted that the additional grounds that have been urged in the miscellaneous application, were purely questions of law, based on the existing facts on record and go to the root of the matter. That it is a settled that question of law can be raised at any stage of the proceedings. 7. He would submit that the data retrieved from the laptop cannot be considered as admissible evidence. The Impugned Order in the present case has placed sole reliance upon the data/pages that has been allegedly retrieved from the seized laptop of the Appellant. It is this data that is relied on in the Impugned Order to reject the transaction value under Rule 10 of the CVR, 1988 and has redetermined the same under Rule 5, 6 and 8 of the CVR, 1988. Out of the 36 pages in total allegedly present inside the laptop, the Impugned Order has selectively relied upon certain pages viz., 01, 02, 13, 14, 15, 16, 17 and 18 to allege undervaluation and overvaluation of the subject goods. These selective pages allegedly retrieved from the laptop have also been included as a part of the relied upon documents to the SCN dated 20.02.2009.The Ld. Comm....
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....stoms Mumbai Import-II, 2023 (9) TMI 22 - CESTAT MUMBAI 10. Ld. Counsel submits that statement recorded from the appellant under section 108 are inadmissible, without examination of admissibility of the same by the adjudicating authority. Section 138B of the Customs Act, 1962 deals with admissibility of statements recorded before any custom officers during inquiry. On perusal of the said provision, it can be seen that the said section provides the process which an Adjudicating Authority is required to follow. The person who made the statement during inquiry has to first be examined as a witness in the case before the adjudicating authority; and thereafter, the adjudicating authority is to form the opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. Reliance is placed on the decisions in: a) M/s. Geetham Steels Pvt. Ltd. v. Commissioner of GST and Central Excise, Salem, 2025 (3) TMI 1098 - CESTAT CHENNAI b) PC Jain v. CC, Kolkata, 2025 (5) TMI 1626 - CESTAT KOLKATA, c) Lilaram Arjandas c. CC, Kandla, 2024 (12) TMI 178 - CESTAT AHMEDABAD, d) Arun Kumar v. CC, Mun....
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....5, it is submitted that sub-rule (2) of Rule 21 provided that when provisional ADD which was levied during the pendency of an ADD investigation is at a rate higher than that of the Final ADD which is imposed after the conclusion of an investigation, the differential duty which was paid during period of provisional ADD is required to be refunded to the Importer. Pointing out the tabulation purported to be examples on the basis of annexures to the SCN dated 20.02.2009, it is submitted that provisional ADD is levied at a higher rate than the Final ADD and although no duty has been discharged for the particular period, in light of the provisions of Rule 21, no differential duty can be demanded from the Appellant in the present case on the basis of the provisional ADD. 13. Ld. Counsel, further argues that in the present case at the time of adjudication both the ADD notifications had expired. It is also stated by the counsel that in the present case the provisional ADD expired in November 2006 and the Final ADD expired in 2011 and Final Order confirming the proposals in the SCN was passed only in 2014. Referring to Section 159A of the Customs Act, 1962, it is submitted that when a not....
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....p and non relied upon documents. The adjudicating authority has also recorded that the appellant's request vide letter dated 26.08.09 when forwarded to the Deputy Director DRI was replied to by DRI vide their letter dated 13.11.2009 inter-alia conceded the reliance on copies of such pages retrieved from the laptop in the SCN and that the laptop and the non-relied upon documents would be returned to the appellant shortly. It is further seen that even after the impugned order has been passed, the appellant during the proceedings before this Tribunal had approached the Jurisdictional High Court being aggrieved by the amount of pre-deposit directed in the interim proceedings. The Hon'ble High Court vide its Judgement dated April 28, 2015 reported as Mr. Francis Goel Proprietor M/s. Tek Chand International v. Commissioner of Customs (Port-Export) & Customs, Excise and Service Tax, 2015 (5) TMI 284-MADRAS HIGH COURT, while noting the submissions of the appellant that the appellant had suffered great prejudice at the time of adjudication since most of the seized records including the laptop which contains relevant documents were not returned, pointed out that if the appellant makes a requ....
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.... Part V: Duty of adequate disclosure 25 The real question that arises for consideration is whether the Adjudicating Authority even at the preliminary stage is required to furnish copies of all the documents in his possession to a noticee even for the purposes of forming an opinion as to whether any inquiry at all is required to be held. In this regard, learned senior counsel for the appellant pressed into service the doctrine of duty of adequate disclosure which according to him is an essential part of the principles of natural justice and doctrine of fairness. A bare reading of the provisions of the Act and the Rules do not support the plea taken by the appellants in this regard. Even the principles of natural justice do not require supply of documents upon which no reliance has been placed by the Authority to set the law into motion. Supply of relied on documents based on which the law has been set into motion would meet the requirements of principles of natural justice. No Court can compel the Authority to deviate from the statute and exercise the power in altogether a different manner than the prescribed one. As noticed, a reasonable opportunity of being heard ....
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....ber, 2005, the petitioner is told to collect the un-relied documents on any working day, with prior appointment and the petitioner collects the un-relied documents on 21st December 2005 and seeks one month's time to reply to the show-cause notice and for postponement of the personal hearing that was fixed on 26th November, 2005, the request of the petitioner cannot be said to be unreasonable. Even if the Commissioner thought that the request of one month was unreasonable, at least a reasonable time could have been given to the petitioner to enable him to file reply to the show-cause notice and then the order-in-original could have been passed. 11.3 We also find that the ratio of the decision of the above cases and others cited above, establish that non return of documents even though non-relied upon constitutes non observance of the principles of natural justice; it is not for the authority to decide whether such documents requested for are really required for filing their defence. We also find that CBEC, vide Circular issued under F. No. 224/37/2005CX.6 dated 24.12.2008, has specifically directed that "After issue of SCN, all un-relied upon documents must be returned ....
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....otification claimed and/or applying judicial precedents to the matter as may be presented. 23. Given the said circumstances, we are of the firm opinion that the laptop of the appellant and the non-relied upon documents are required to be returned forthwith to the appellant. The Department, if they so desire, and require the data for further legal proceedings, is at liberty to ensure that the contents of the laptop are duly downloaded securely and preserved as per the extant administrative guidelines and procedural directives in consonance with the applicable evidentiary rules and judicial pronouncements in this regard. We are also of the considered view that the matter requires examination and reconsideration by the Jurisdictional Adjudicating Authority, and the interest of justice will be best served if the matter is remitted back for decision afresh. In a coordinate bench decision of this Tribunal, vide M/s. Geetham Steels Pvt. Ltd. & Others Vs. Commissioner of GST and Central Excise, 2025 (3) TMI 1098 - CESTAT CHENNAI, which has been relied upon by the appellant, authored by one of us, [Ajayan T.V., Member (Judicial)], this Tribunal has dwelt upon the procedure to be adopted ....