TaxTMI 
TaxTMI 
TaxTMI 
2024 (9) TMI 1853
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.... 22/2016/1800 dated 06.02.2017 2-6 50154/2021 50937/2021 50938/2021 50939/2021 51724/2021 8/2016/17693-17701 dated 28.06.2016 OIO No.09/COMM/MS/C CUBE/ICD-PPG/2019 23.12.2019 Rs.36280350 48503330 8/2016/9222 dated 25.4.2018 2. The officers of Special Intelligence and Investigation Branch (SIIB), New Delhi received an intelligence that various importers are indulged in under- invoicing and consequent under-valuation of the goods viz. "HOP Extracts" & "HOP Pallets" by not declaring the actual transaction value of the same, resulting in evasion of Customs Duty. The details of importers importing "HOP Extracts" through Air Cargo Complex, New Delhi were examined. It was found that M/s Agya Imports Limited and M/s C Cube Consulting Pvt. Ltd., both have the same address i.e. F-11/C, Okhla Industrial Area Phase 1, New Delhi 110020 and the common director, namely, Shri Abhishek Agarwalla. Both the importing companies had filed various Bills of Entry and cleared the impugned goods i.e. "HOP Extract"/ "HOP Pallets" from Air Cargo Complex, New Delhi. 3. It was found that M/s Agya Imports Ltd. had filed Bill of Entry No. 5252339 dated 13.05.2016 (Live B/E), covered un....
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.... detailed order dated 10.05.2024. 7. It is mentioned in the written submissions of appellant that several questions of law are required to be considered by this Tribunal in the present appeals as there has been a grave violation of principles of natural justice on part of the original adjudicating authority, committed, while announcing the orders under challenge. The Commissioner has clubbed different Show Cause Notices without any intimation about such clubbing to the appellant. The clubbing is otherwise contrary to the letter dated 16.05.2018 as was issued by CBEC Board vide which the request of the appellant for appointment of common adjudicating authority was rejected. The appellant was not granted the opportunity of being heard by the original adjudicating authority. The orders under challenge have been passed ex-party. The notices of hearing as mentioned in the order were never received by the appellant. In fact, the notices were issued so proximate to the date of hearing that there was no possibility of those to be received by the appellant before /on the date of hearing mentioned therein. Hence it remains the fact that the appellant was never heard by the adjudicating au....
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....rting the same from the foreign supplier since the year 2008. The quantity of import was so huge and appellant being an old customer that the imports were made at the lowest negotiable price. It is also impressed upon that there is no undervaluation as is alleged. The valuation done by the Department is otherwise contrary to the ratio laid down by Hon'ble Supreme Court in the case of Century Metal Recycling Private Ltd. vs. Union of India reported as (2019) 6 SCC 655. The imports were made against manufacture invoice which is the best piece of evidence, but those were not relied upon. The order is contrary to the decision of Hon'ble Supreme Court in the case of Collector vs. Sai Impex reported in 1996 (84) ELT 47 (SC). The order is also alleged to be contrary to the ratio laid down by Hon'ble Supreme Court in the case of Basant Industries Nunhani vs. Collector of Customs reported as 1995 Supp. (3) SCC 320. The fact that the payments to the foreign suppliers had always been sent by Banking channels has been ignored by the authority despite it was so stated by the appellant while getting recorded under section 108 of Customs Act, 1962. It has been highlighted that no independent inve....
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.... the appellants did not come forward to cross-examine any of those witnesses. The factum of failure on part of the appellant to attend the personal hearing despite being afforded ample opportunities is well recorded in both the orders under challenge. It is impressed upon that no principle of natural justice has been violated while adjudicating the impugned Show Cause Notices. 11. While rebutting the submissions made with respect to the merits of the case, ld. Departmental Representative has mentioned that the importing companies M/s. C Cube Consulting Pvt. Ltd and Agya Import Ltd were importing "HOP pallets" and "HOP extract" from different foreign supplier and Shri Agarwalla was Director to both the companies and was looking after all work relating to imports made by the companies. M/s. C Cube Consulting Pvt. Ltd had imported those items under several Bills of Entry as detailed in the respective Show Cause Notice for each of the appeal herein, from Air Cargo Complex, New Delhi during the period 2011-2016. The live Bills of Entry of both the impugned orders were intercepted. However, based on the investigation, all the imports made by the appellants during the period 2011-2016 ....
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....Having heard both the parties, the rival contentions and after looking into the records of all the 6 appeals, we find that following questions are required to be adjudicated for the purpose:- 1. Whether the appellant has been denied the right of personal hearing. 2. Whether the appellants have undervalued the HOP pallets/HOP extracts imported by him while submitting the respective Bills of Entry. Issue No.1: 14. As already noted above, several Show Cause Notices have been served upon the appellants in each of these six appeals. But there is no reply filed by appellant except for the letter dated 28.06.2018 which is in reference to Show Cause Notice No.22/2016 dated 22.09.2016 and the letter dated 10.07.2019 which is with respect to Show Cause Notice No.22/2016 dated 06.02.2017. As observed from the orders under challenge the OIO dated 23.12.2019 specifically recites that no reply has been received from any of the appellants except that a reply from Mr. Uma Kant Dash, the employee of M/s. Yemuna Impex was furnished vide letter dated 18.05.2018. Mr. Uma Kant Dash did not appear before the Adjudicating Authorities. In Appeal No.51347, there were almost 8 opport....
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....ing the allegation of the impugned Show Cause Notices but they deliberately kept avoiding the same on one pretext or the other. Thus it can not be said that appellant was not opportunity of being heard. 16. Coming to the aspect of request of cross-examination of witnesses. The cross-examination of Mr. Jeffry Makhani only was rejected, that too, on the ground that vide his statement recorded under section 108 of Customs Act 1962 dated 10.08.2016 and 06.02.2017, he merely had stated about handing over the relevant documents to the Department, which were received in the sealed condition from the suppliers country. The master airway bills as was submitted by the Jeffry Makhani were got verified from their origin office located in Nunek via office e-mail dated 11.08.2016. In view of these facts, we do not find any infirmity in the order declining the request to cross-examine such witness. Few other Witnesses were denied cross examination for the reasons either of unavailability/ un traceability etc. as were duly communicated to the appellants. Apparently and admittedly there is no rejection to cross-examine the other witnesses but there is no effort on the part of the appellant to ge....
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....e respective invoices were retrieved / recovered. It got revealed that the invoices received from the overseas suppliers and the invoices as were submitted by the importers have a different value for the imported goods lesser values were shown in the invoices as were submitted with the Bills of Entry. Both the adjudicating authorities have observed that the comparison of the documents clearly establish that all shipment details with reference to nature, classification, origin etc. in the documents as retrieved from soft data recovered from appellants' premises and those received with overseas enquiry report are same as mentioned in the invoices submitted with the Bills of Entry except that the value of the imported goods and the quantity thereof were different. Even the date of reaching of consignment was observed as same in all the said documents even with respect to the live consignment. The overseas inquiry report also had the certified copies of the invoices for shipments made to both the impugned importers. The copies of proforma invoices (sales contract) also had the same rate and value of imported goods as was shown in the invoice obtained through overseas inquiry. The value....
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.... We hold that it cannot be a mere coincidence that the invoice submitted by the airlines is not known to the appellant nor it can be the coincidence that all other details of the invoices compared are same except the valuation of the goods imported. There otherwise can be no denial to the fact that there has to be the original invoices sent from the foreign suppliers. Nothing has been produced by the appellant that the invoices received during the overseas inquiry do not pertain to the original invoices of their imports or that the original invoices w.r.t. Bills of Entries in question are different from the original invoices received or retrieved by the department. 24. We also observe that Statement of Sh. Suvojit Banerjee, Financial controller and Authorized signatory of M/s ELF Shipping India Pvt. Ltd recorded on 25.01.2017 and he has also reiterated the same propositions. In fact the CHAs have stated in their various statements that the documents were submitted after receiving from the Importer/ Sh Abhishek Agarwalla. Thus, it proves beyond doubt that Sh Abhishek Agarwalla is the mastermind involved in the said forgery. The invoices supplied by airlines proved gross undervalu....
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....also presume, unless the contrary is proved, the truth of the contents of such document.] [ Explanation.-For the purposes of this section, "document" includes inventories, photographs and lists certified by a Magistrate under sub-section (1-C) of section 110.] [ Inserted by Act 80 of 1985, Section 11 (w.e.f. 27.12.1985).]" 27. In light of this provision we hold that the declarations annexed with other documents including invoices are such documents to which presumption of correctness is attached. The appellants have failed to rebut the said presumption. The fact that payments were being transferred through banking channels cannot rebut this presumption as the amount which was transferred is the value shown in invoices submitted, by the appellants themselves, along with the Bill of Entry and that the said value has been rejected. No other export declarations have falsified the documents obtained by the Department are placed on record by the appellant. Nor any other cogent document is produced which may show that the price as was declared to the Chinese Customs was different from the price which is mentioned in the export declaration obtained by the Department from China ....