TaxTMI 
TaxTMI 
2026 (2) TMI 852
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....d in the import and sale of slack wax and residue wax, and were effectively managed by Shri Ramdev Purba. Pursuant to search and seizure operations conducted on 30.09.2011, it was found that AI had filed Bill of Entry No. 4895987 dated 12.10.2011 for the clearance of residue wax. Examination by DRI on 14.11.2011 revealed that 71.530 MT of residue wax valued at Rs.46.75 lakhs had been imported from M/s. Harmony Impex FZE, Dubai, UAE. The declared value appeared significantly lower than contemporaneous import prices, including prices charged by the same supplier to another importer, M/s. The Mehta Industries, Sivakasi. The goods were seized under the Customs Act, 1962. Samples were analysed by the Chemical Examiner, Customs House, Tuticorin, who reported that the product consisted of mineral hydrocarbon oil and mineral wax, containing 69.3% mineral hydrocarbon oil. DRI also examined three additional Bills of Entry (Nos. 4895489 dated 12.10.2011, 4966978 dated 19.10.2011, and 5345063 dated 30.11.2011) filed by SAI. The consignments, containing brown waxlike substances identified as heavy slack wax valued at Rs.54.25 lakhs and Rs.53.3 lakhs, were also seized due to undervaluation when ....
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.... the enhancement impermissible. D) Issuance of demand under Section 28 prior to finalization of provisional assessment is without jurisdiction, as held in ITC Ltd. and Godfrey Philips India Ltd. Once assessment is provisional under Section 18, invocation of Sections 124, 111(m), and 112 is premature and renders the proceedings unlawful. E) Reliance on prices of M/s SPPL is wholly untenable due to lack of parity in oil content, a critical price-determining characteristic of wax products. SPPL invoices do not disclose oil content, while the appellant's test reports show wide variation, defeating comparability. F) Allegations of non-declaration of country of origin, invoice fabrication, and conspiracy are baseless and unsupported by evidence such as parallel invoices or proof of additional consideration. The proposed re-determination based on account statements and proforma invoices reflects patent non-application of mind and violates the Customs Valuation Rules, 2007. G) Fixation of purported minimum prices and extrapolation of later year price trends amount to prohibited minimum value fixation under Rule 9. The valuation is speculative and arbitra....
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.... the value of imported goods and export goods shall be the 'transaction value' of such goods, as determined in accordance with the rules made in this behalf. We find that the judgments cited by the appellant pertain to the old provisions of law. The judgment of the Hon'ble Supreme Court in Union of India Vs Mahindra & Mahindra Ltd. [1991 (55) ELT 15] examines the issue in terms of the Customs Valuation Rules, 1963. The issue in Honesty Traders Vs Collector of Customs [1991 (55) ELT 102], pertains to a Bill of Entry dated 11.12.1989. Similarly the judgment of the Hon'ble Supreme Court in the case of M/S Eicher Tractors Ltd., Haryana Vs Commissioner Of Customs, Mumbai [200 (122) ELT 321 (SC)], pertains to Bills of Entry filed in 1993. The judgment of the Hon'ble Calcutta High Court in Sandip Agarwal Vs Collector Of Customs [1992 (62) ELT5 28 (CAL)], pertains to Bills of Entry filed in 1991. The said judgments pertain to the law prior to changes made to section 14 of the Customs Act. A change of language in a section is suggestive of the fact that change of interpretation of the provision was intended by the legislature. The concept of transaction value is entirely different from the ....
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....parate arguments on each issue are necessary unless two or more issues are such which can be more conveniently addressed together. The factual premises on which a particular argument is given has to be stated on each issue so that the proposition can be appreciated in that light. 4. For each proposition, after stating the factual premises on which a particular argument is given, there should be first the applicable statute which can even be excerpted. Only then, case- law may be cited not just as the legal database on a computer shows up on a query; but each judgment has to be examined and only the more relevant ones for each topic be cited. The Court expects the lawyers to place all case laws, both for and against his case, so long as it is relevant to the proposition in question. Those from the Supreme Court be placed first; those from our High Court be placed next; and those from other High Courts be placed thereafter. In each grouping, the judgments are to be arranged in a reverse chronological order. This is in line with the law relating to precedents. Thereafter, for each decided case which appears to be important, a brief resume of the factual scenario in which the ....
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....by examination of the foreign supplier otherwise rejection of invoice value is unsustainable and vitiates the proceedings. We find that there is no straight jacket formula on the ingredients required to prove undervaluation. It is the duty of the assessing officer to collect and sift the evidence submitted by the importer or gathered by him, confront the assessee, and allow for explanation, to find whether the declared value meets the requirement of transaction value. If the assessee fails to provide a credible explanation, the Assessing Officer can raise an inference of a wrongly declared value and proceed sequentially in the manner provided in the Valuation Rules. The test of admissibility of evidence lies in its relevancy. The Hon'ble Supreme Court in Rabindra Chandra Paul Vs. Commissioner of Customs [(2007) 3 SCC 93] and Commissioner of Customs, Calcutta Vs. South India Television (P) Ltd., (2007) 6 SCC 373], has stated the legal position that transaction value can be rejected if the invoice price is not found to be correct, but it is for the department to prove that the invoice price is incorrect. Further the Hon'ble Supreme Court, in SOUNDS N. IMAGES Vs COLLECTOR OF CUSTOMS [....
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....always lies upon the person who asserts the same. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom burden lies has been able to discharge his burden. Further, things which are admitted need not be proved. Whether the burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. The party on whom the burden lies has to stand on his own and he cannot take advantage of the weakness or omissions of the opposite party. Thus, the burden of proving a claim or defence is on the party who asserts it. 42. Section 102 of the Evidence Act, 1872 provides a test regarding on whom the burden of proof would lie, namely, that the burden lies on the person who would fail if no evidence were given on either side. Whenever the law places a burden of proof upon a party, a presumption operates against it. Hence, burden of proof and presumptions have to be considered together. There are however exceptions to the general rule as to the burden of proof as enunciated in Sections 101 and 102 of the Evidence Act, 1872, i.e., in ....
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....(1) ... It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence, "of course it is possible, but not in the least probable" the case is proved beyond reasonable doubt, but nothing short of that will suffice." (emphasis supplied) 721. The law recognises that within the standard of preponderance of probabilities, there could be different degrees of probability. This was succinctly summarised by Denning, LJ in Bater v. Bater [Bater v. Bater, [1951] P. 35 (CA).], where he formulated the principle thus: (p. 37) "So also, in civil cases, the case must be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter." (emphasis supplied) 722. The definition of the expression "proved" in Section 3 of the Evidence Act is ....
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....robabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged." (emphasis supplied) 725. The court recognised that within the standard of preponderance of probabilities, the degree of probability is based on the subject matter involved. 726. In State of U.P. v. Krishna Gopal [State of U.P. v. Krishna Gopal, (1988) 4 SCC 302 : 1988 SCC (Crl.).], this court observed : (SCC p. 314, para 26) "26. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge." (emphasis added) 10. The Hon'ble Supreme Court of India in RVE Venkatachala Gounder Vs Arulmigu Viswesaraswami and VP Temple [(2003) 8 SCC 752], has examined the legal terms 'proved'. It held....
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....ial distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence." (emphasis added) In State of W.B. Vs Mir Mohammad Omar & Ors. [(2000) 8 SCC 382 ], the Hon'ble Supreme Court held that the pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The Court went on to observe that the doctrine of presumption is not alien to such a rule, nor would it impair the temper of the rule. On the other hand, if the traditional Rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty. 11. We can now examine the issues involved. It is the departments case that 4 live BE's imported during October-November 2011 and 22 BE's imported during March 2008 to November 2011, were undervalued. There are two stages in cases of redeterminati....
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....er information from the importer, the declared transaction value is liable to be rejected. In the present case, the declared value was found to be substantially lower than contemporaneous import prices, justifying invocation of Rule 12 and rejection of the transaction value under Rule 3(1). The Department has thus discharged its initial burden of demonstrating that the declared value is unreliable; the onus now lies on it to determine the correct assessable value in accordance with law. 14. We find that the valuation of the goods was arrived at as per para 28 and 29 of the impugned order, which is reproduced below: "28. In respect of BE No 5345063 dt. 30.11.2011 filed by M/s. SAI for clearance of residue wax the actual invoice value of USD 840/MT as available in the accounts statement is to be adopted as per rule 4 of CVR 2007. Similarly, in respect of the other 2 Bills of Entry No. 4895489 dated 12.10.2011 and 4966978 dated 19.10.2011 Imported in the name of M/s. SAI for clearance of heavy slack wax the value of USD 1015/MT can be safely adopted under Rule 4 of CVR 2007 as it is clear from the Account statement of M/s. Harmony Impex, FZE, who has supplied stack wax of ....
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....t upon the importer to discharge the same. In the absence of such discharge, the burden is deemed to have been satisfactorily met by the Department. In the present case, the importer-appellant neither filed a reply to the show cause notice nor appeared for personal hearing despite four opportunities being granted. Consequently, the plea of denial of effective personal hearing is devoid of merit. The statements relied upon remain un-retracted; the authenticity of the emails has not been disputed. The appellant's objection to reliance on the post-seizure email dated 30.11.2011, retrieved not from its storage in the appellants computer but from an external mail server, is unsupported by reasons or by citing any provision of law. No request for cross-examination of the witnesses whose statements were relied upon was made before the adjudicating authority. The judgments cited by the appellant on valuation have also been found distinguishable on facts and are inapplicable to the present case. The Hon'ble Supreme Court in the case of Commissioner of Income Tax, Madras Vs Messrs Best & Co. [1966 AIR 1325, 1966 SCR (2) 430], observed as follows; "When sufficient evidence, eithe....
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....retriever of data was rightly denied and in any case, it did not cause any prejudice to the petitioners. (emphasis added) 17. A similar view was taken by the Hon'ble Delhi High Court in its recent judgment in M/S. VALLABH TEXTILES Vs ADDITIONAL COMMISSIONER CENTRAL TAX GST, DELHI EAST AND ORS [W.P.(C) 4576/2025, Dated: 09.04.2025] and by the Hon'ble Allahabad High Court in Commissioner Of Customs (Preventive) Lucknow Vs Shri Sarad Chand Agrahari @ Sharad Chand Agrahari [2026:AHC-LKO:3332-DB / CUSTOM APPEAL No. - 19 of 2025, Dated: 16.01.2026]. Further the Hon'ble Karnataka High Court in Commissioner of Customs, Bangalore Vs Jyothi C. Jain & Ors. [2025 (9) TMI 1225 - KARNATAKA HIGH COURT], after discussing the judgment of the Hon'ble Supreme Court, in M/s. Andaman Timber Industries Vs Commissioner of Central Excise, Kolkata-II [(2016) 15 SCC 785], held as under: "10. In light of the above judgment, it is only where the statement of a witness has been recorded and such statement is proposed to be relied upon against the assessee that, upon a request made by the assessee, the adjudicating authority is bound to afford an opportunity of cross-examination. In the present c....