TaxTMI 
TaxTMI 
2025 (12) TMI 835
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the Notification no.46/2011-Cus. dated 01.06.2011. 3. Based on intelligence that the goods imported by the importer by declaring as originated from Vietnam have actually originated in China and Uzbekistan and was routed from these countries to Vietnam and then from Vietnam to India, the Directorate of Revenue Intelligence conducted an investigation, in the course of which, search various premises were searched and statements were recorded from various persons including Shri S Amarish, a Director of the Importer. From the analysis of the documents / evidences recovered, the department was of the view that the importer has imported goods with the description "Raw silk in hanks (not thrown) Art no.429 Uzbekistan Origin", "Raw silk (not thrown) in hanks Art no.310 Uzbekistan Origin", "Raw silk (not thrown) in hanks Art no.429" etc - from various manufacturers of Uzbekistan, where the supplier is primarily M/s. Grain Will Ltd. Hongkong, by third country invoicing thereby mis-declaring the origin of the goods for the wrongful availment of benefit of Notfn. No.46/2011-Cus dated 01.06.2011. The complete description of the goods as per the bills of entry were detailed in Annexures A &....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ule 8 cannot be invoked in the instant case. Therefore, since it appeared to the department that the importer had undervalued the imports and since the exporter / consigner invoices were not available for all the remaining bills of entry from Uzbekistan, it appeared that the assessable value is determinable @ 10.93% higher and the same should be considered as the correct transaction value under Rule 9 of the valuation Rule 2007. The department therefore re-determined the final assessable value in respect of 18 bills of entry as detailed in Annexure B to Show Cause Notice. 5. The department further observed that on scrutiny of the import data of the importer in comparison with the import unit price of other Indian importers for imports of similar goods from China, it appeared that the importer had also under valued the import of raw silk from China. Therefore, finding the transaction value in respect of the import of raw silk from China liable for rejection under Rule 12 of the Customs valuation Rule 2007, the same was re-determined as per Rule 5 of the Customs Valuation Rules, 2007 as detailed in Annexure C to Show Cause Notice for 12 such bills of entry. Like-wise in respect of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d. The SCN also called upon Shri S Amarish, Director of M/s Sino Import & Exports Private Limited, to show cause as to why penalty should not be imposed on him under Section 112 and Section 114AA of the Customs Act, 1962 for his role of evasion of appropriate duties of customs. 6. Consequent to the replies filed by the appellants inter-alia denying the allegations and seeking compliance with the mandate of Section 138B of the Customs Act, 1962 as well as contending that the mandate of Section 138C has not been complied and also producing data of contemporaneous imports as well as contending that the entire demand pertaining to annexure D is time barred. After due process of law, the Ld. Adjudicating Authority vide the impugned order in Original No.109388/2024, dated 23.09.2024 confirmed the demands totalling to Rs. Rs.1,10,21,861/- as proposed in the Show Cause Notice and ordered for appropriation of Rs.60 lakhs paid by the importer towards the differential duty interest and liabilities. The Ld. Adjudicating Authority also held the goods imported vide the bills of entry detailed in Annexure A, B, C and D liable for confiscation under Section 111 (m) of the Customs Act. As these ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....udicating Authority has referred to table, data for average unit price for all other Indian importers is taken as the basis. This is contrary to the valuation rules. The data provided in Annexure E & F of the Show Cause Notice itself gives prices declared by other importer which is almost the same, despite the quantity imported by others being less in respect of the same items imported from China in respect of Annexure C & D. There is no admission of under valuation and hence no question of invoking the extended period. The Adjudicating Authority has erred in relying on evidence unsupported by certificates under Section 138 C and placing reliance on an unsigned invoice showing unit price of USD 40. The appellant had produced signed invoices in reply to order in appeal during assessment itself showing the unit price as US $ 30 raised by JVLLC and ANDIJAN silk of M/s. Grain Will Ltd. duly signed by the exporter. The Adjudicating Authority has also not provided the documents such as correspondence with Govt. of Uzbekistan and letter from Govt. of Uzbekistan to Embassy of India in Moscow. The Adjudicating Authority has also not distinguished judgements relied upon by the appellant, per....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of non-Vietnamese origin goods through Vietnam to avail the benefit of the AIFTA duty exemption notification. Further, efforts to verify the Certificates of Origin indicated that the Country of Origin Certificates sent for verification, as detailed in the OIO, were found to be authentic and genuine by the Vietnamese issuing authority and has met the requirements to get the preferential treatments under the AIFTA. The Ld. Adjudicating Authority has also concluded that the suspicion that the goods imported from Vietnam were of non-Vietnamese origin, cannot be corroborated by direct evidences and it thus appeared that no direct evidences are available to establish the allegation of wrong availment of the duty exemption under the AIFTA under notification 46/2011-Cus. 12. We find that the demands of differential duties on the imported goods have been confirmed as quantified in Annexures A, B, C and D of the SCN. The evidence in this regard in so far as the demand on the raw silk imported from Uzbekistan as at Annexure A ibid is the purported admission in the statements of Mr. Amrish recorded under Section 108 and the export documents stated to have been submitted to the Uzbekistan C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uthenticated copies of the export documents from the Uzbekistan Customs Authorities, including the letters indicating their proper chain of transfer and custody, to the importer, as requested. It hardly needs to be emphasised that even if unrequested, it was incumbent upon the Department to supply these documents, especially when the Department seeks to place reliance on the same to substantiate the allegation of undervaluation. It is also surprising that the Ld. Adjudicating Authority has also found nothing unconscionable about such reliance on documents not supplied to the importer which is opposed to elementary principles of fairness and justice. If, as the Ld. Adjudicating Authority states, the documents have been obtained as per the agreement between the Government of the Republic of Uzbekistan and the Government of the Republic of India regarding mutual assistance between customs administrations under Section 151B of the Customs Act, read with Notification No.58/2021-Customs (N.T), it is all the more reason to be transparent and supply the documents showing the chain of transfer and custody. It is also inconceivable that such documents would not be authenticated. We find that....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pex Courts, have consistently held that the test of relevancy of the statements made under Section 108, for reasons of the stipulations in the sub-section (2) of Section 138 has to be satisfied under the procedure stipulated in Section 138B(1), requiring the Adjudicating Authority to examine the deponent as a witness to prove the contents of the statement, to satisfy himself as to its voluntary nature and when intended to be relied on against the noticee/assessee, ought to be tested on the touchstone of cross examination. It is seen that a plethora of decisions bolster our aforesaid view. The decisions in Additional Director General (Adjudication) v. Its My Name Pvt Ltd, 2021 (375) ELT 545 (Del), Junaid Kudia v CC, Mumbai Import -II, (2024) 16 Centax 503 (Tri-Bom) affirmed in CC Mumbai Import-II v. Junaid Judia, (2024) 16 Centax 504 (SC), Jeen Bhavani International v CC Nhava Sheva-III, (2023) 6 Centax 11 (Tri-Bom) affirmed in Commissioner of Customs, Nhava Sheva-III v Jeen Bhavani International, (2023) 6 Centax 14 (SC), Suni Aidasani @ Vicky v. Principal Commissioner of Customs (Import), New Delhi, (2024) 18 Centax 321 (Del) and the decision of this Tribunal in M/s. Geetham Steels....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the lower side and thus the transaction value declared by the importer is not correct and cannot be accepted. 18. We find force in the contention of the appellant that when the transaction value, description, and quantity at the time of importation based on the commercial invoices received by them from their overseas suppliers were declared and the consignments were given out of charge, the department has to prove undervaluation by cogent evidence. The contention of the appellants that the import by other importers from suppliers who are different from the suppliers of the appellant, made on different dates, can vary in value based on various factors like negotiation and discounts extended, difference in quantity, timing of placing of the order, quality etc bears credence. Furthermore, there is no credible evidence of any extra amount having been paid by the appellant towards the said imports over and above the transaction value that has been paid through banking channels. The revenue has also not recovered any parallel invoices pertaining to these imports to substantiate such insinuation. In such circumstances, the premise of the Department as aforementioned, for harbouring a r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as been held by a coordinate bench of this Tribunal in similar circumstances in the decision in Junaid Kudia v. Commissioner of Customs, Mumbai Import-II, (2024) 16 Centax 503 (Tri-Bom), which is as under: " 14. Further, we also find that in respect of disputed imported goods, Bills of entry were already been assessed at the time of importation of the goods and hence, further proposal to re-enhance the value, in the eventuality, when the earlier assessment orders having not been appealed against/reviewed, have attained finality and accordingly, cannot be proceeded with for rejection of the declared value. In other words, there cannot be any re-assessment of the said values, which had become final for want of appeal against the same. Our views are supported by the judgments in case CC v. Lord Shiva Overseas (supra), Malhotra Impex v. Commissioner of Customs, Ahmedabad - 2006 (203) E.L.T. 561 (Tri.-Del.) and Commissioner of Customs (Prev.), v. Paras Electronics - 2009 (246) E.L.T. 231 (Tri.-Mumbai)/2009 taxmann.com 923 (Mum. - CESTAT)." 20. The said binding decision, though cited before the Ld. Adjudicating Authority, has neither been controverted nor followed. It is seen....