TaxTMI 
TaxTMI 
2025 (12) TMI 833
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....1/2023 dated 31.01.2023. 1.1. Customs Appeal No. 75654 of 2024 has been filed by the appellant against the Order-in-Original No. KOL/CUS/COMMISSIONER/PORT/ADJN/01/2024 dated 13.02.2024 wherein penalties of Rs.25,00,000/- (Rupees Twenty Five Lakh only) under Section 112(a) of the Customs Act, 1962 and Rs.50,00,000/- (Rupees Fifty Lakh only) under Section 114AA of the Customs Act, 1962 have been imposed on him. 1.2. Aggrieved by the imposition of penalties as above, the appellant has filed the present appeals. 2. Both these appeals are having a common issue and therefore, they are taken up together for issuance of a common order. 3. The issue involved in these appeals is under-valuation of spares of Heavy Earth Moving Machinery imported by Indian importers from M/s E.B.McSun Pte Ltd., Singapore. The importing firm in the present case is one M/s D.D. Impex, Kolkata, a proprietary concern of one Shri Ranaji Ganguly. During the period December, 2005 to September, 2006, spares of Heavy Earth Moving Equipment were imported by the aforesaid M/s. D.D. Impex allegedly at under-valued price from M/s. E.B. McSun Pte Ltd., Singapore. The said consignments were cleared following usua....
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....posed on him and accordingly, allowing the appeals filed by him. 5. The Ld. Authorized Representative of the Revenue appearing before us reiterated the findings in the impugned order. He justified the imposition of penalties on the appellant herein and accordingly, prayed for rejection of the instant appeal. 6. Heard both sides and perused the appeal records as well as the submissions made by both the sides. 7. We observe that the appellant has filed these appeals against the imposition of penalties on him. It is the case of the Revenue that during the impugned period, the firm M/s. D.D. Impex has imported spares of Heavy Earth Moving Equipment at under-valued prices from M/s. E.B. McSun Pte Ltd., Singapore. The allegation against the present appellant is that he has facilitated the under-valuation of the goods as a 'consignment agent'. In this connection, we observe that the appeal filed by the importer, namely, Shri Ranaji Ganguly, Proprietor of M/s. D.D. Impex, has already been decided by this Tribunal vide Final Order No. 75319 of 2025 dated 05.02.2025 in Customs Appeal No. 78278 of 2018 [CESTAT, Kolkata], wherein it has been categorically held that the allegat....
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....ments. The appellant has submitted that these documents are unsigned and unattested photocopies. We observe that it is a settled law that no presumption can be raised under Section 139 of the Act in respect of such unsigned and unauthenticated documents. We agree with the submission of the appellant that based on such unsigned documents, transaction value cannot be enhanced. We observe that this view has been held in the case of Commissioner of Customs, Mumbai Vs. Bussa Overseas Properties Ltd. [2007 (216) E.L.T. 659 (S.C.)]. The relevant part of the said decision is reproduced below: - "The short question involved in these civil appeals is whether the Department was right in adding GBP1.56 lakhs to the declared value of GBP6.26 lakhs approximately. In the present case, the Department has alleged under-valuation by the importer (assessee). The product imported is vatted malted spirit used in manufacture of scotch whisky. The Department alleged that the CIF declared value was not GBP6.26 lakhs but it was around GBP7.82 lakhs on the basis that the said sum of GBP1.56 lakhs constituted the balance amount subsequently paid partly in cash and cheque by the assessee to the forei....
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....bject to the satisfaction of the sub-section (2) of Section 138C Ibid. This refers to the certificate from a responsible person in relation to the operation of the relevant laptop/computer. After perusing the record of the case, we note that in respect of the electronic documents in the form of computer printouts from the seized laptops and other electronic devices, have not been accompanied by a certificate as required by Section 138C(2) ibid as above. In the absence of such certificate, in view of the unambiguous language in the judgment of the Hon'ble Supreme Court (supra), the said electronic documents cannot be relied upon by the Revenue for confirmation of differential duty on the appellant. In the present case, the main evidence on which, Revenue has sought to establish the case of undervaluation and misdeclaration of the imported goods is in the form of the computer printouts taken out from the laptops and other electronic devices in respect of which the requirement of Section 138C(2) ibid has not been satisfied. On this ground, the impugned order suffers from uncurable error and hence, is liable to be set aside. 6.4. In the impugned order, it is alleged that i....