TaxTMI 
TaxTMI 
2026 (4) TMI 541
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....ntelligence Department carried out certain investigation and searches which revealed that the appellants have mis-declared the value of their export consignments, resulting in non-payment customs duty to the tune of Rs.43,01,233/-. The enquiry also revealed that the exporter M/s Temple City Developers Pvt Ltd., (TCDPL) had entered into a contract dated 16.07.2013 and Addendum No.1 27.09.2013 in the name of one M/s Pacific Global Resources Pte Ltd., Singapore (hereinafter referred to as M/s PGRPLS) as buyer for export of iron ore fines having 57% Fe content. The FOB price agreed and mentioned was USD 70 PDMT. The exporters sent two consignments under the cover of two shipping bills dated 25.07.2013 and 12.08.2013 per vessels 'M.V. Olympus' and 'M.V. Ruby Halo' respectively. In both the shipping bills, the declared FOB was USD 70 PDMT. The investigation revealed that there was another contract referred to by Department as Second Contract bearing no. BBSPL/RGPLS/034/13-14 dated 16.07.2013 between one M/s Rotomac Global Pte Ltd., Singapore (M/s RGPLS) as seller and M/s Bagadiya Brothers (Singapore) Pte Ltd., Singapore (M/s BBSPL), both Singapore registered companies, as seller and buye....
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....ion of provisional assessment and payment of export duty was not correct and therefore the said declared value was proposed to be rejected. It was further considered that as the actual FOB value in terms of another contract, was USD 89 PDMT and therefore the differential duty was required to be recovered in terms of provision of Section 28(4) of Customs Act. Department also felt that for their role, these three appeals namely Shri Pradeep Kumar Mangaraja, Shri Ranjan Kumar Pattnaik and Shri Sabyasachi Pattnaik were also liable for penalty under Section 114(ii) and 114AA. 5. In the course of adjudication, the appellants have mainly submitted that they had sent the consignment to M/s PGRPLS and have also received export proceeds from M/s PGRPLS as per agreed contracted rate of USD 70 and they have not received any amount over and above the contract price. Further, they submitted that the statements cited as evidence are not reliable as all of them have been shown to be fully involved in transaction and there is no other corroborative or supporting evidence and therefore they have no evidentiary value. They also pointed out that had there has been any evasion of customs duty by way....
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....elied upon. Secondly, he argued that reliance placed by the Department on e-mail and some documents taken as printouts from computers, are not admissible as evidence as the provisions of Section 138C of the Customs Act were not complied with. In this regard, they have relied on the judgment in the case of SN Agrotech Vs Commissioner of Customs, New Delhi [2018 (361) ELT 761 (Tri-Del)]. 7. Learned AR on the other hand reiterates the findings and also submits that the retraction of statements by the concerned persons at the time of adjudication were an afterthought as it was done only at the time of adjudication. Moreover, the e-mails and statements are sufficient evidence to corroborate that the actual contract price was USD 89 PDMT and not the declared FOB of USD 70 PDMT. He also submitted that all the statements were recorded under Section 108 of Customs Act, which are admissible as substantive evidence. He has also relied on various case laws, including MD Akhtar Vs Commissioner of Central Excise, Customs & Service Tax [2015 (323) ELT 136 (Patna)], Romesh Chandra Mehta Vs State of West Bengal [1999 (110) ELT 324 (SC)] and Haroon Haji Abdulla Vs State of Maharashtra [1999 (110)....
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....ether the payments have been received in cash over and above that amount through from them or through some other entity on their behalf and the entire differential amount has been settled in cash. In order to consider these evidences in the nature of statements, e-mail, etc., it is to be examined in the light of statutory provision under which such evidences are admissible under the Customs Act. While statements recorded under Section 108 per se is an admissible evidence, however, it requires certain amount of corroboration through some other independent evidence. 11. In most of the statements, the concerned persons have been confronted by Investigating Officers with a contract dated 16.03.2013 between M/s Bagadia Brothers (Singapore) Pte Ltd., and M/s Rotomac Global Pte Ltd., Singapore, both overseas companies. They were also show certain print outs and e-mails by Investigating Officers in support that there was well planned conspiracy involving M/s Rotomac Global Pte Ltd., Singapore and appellant to under value export consignments. We however find that there is nothing concrete on record to the extent that M/s PGRPLS was a dummy company operating in Singpore or that they had n....
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....provisions under Section 138C of the Customs Act for admissibility of the electronic evidence, as held by Hon'ble Supreme Court in the case of Additional Director General, Adjudication Vs S.K. and Company Pvt Ltd., & Others [2025 (9) TMI 76 (SC)]. However, we find that in the said case, the Hon'ble Supreme Court, while considering earlier judgment in the case of Anwar & P.K. Basheer, supra, inter alia, held that in view of the record of proceedings duly signed by recipients including the various statements in a peculiar fact of the case, there was a due compliance of the Section 138C(4) and therefore in a particular set of facts various documents on record in the form of record or proceedings and the statements recorded under Section 108 could be said to be the due compliance of the Section 138C(4). It was also noted by the Hon'ble Supreme Court that at no point of time the statements recorded under Section 108 came to be retracted. In this regard, we find that in present appeal there is nothing on record to show as to how said e-mails were retrieved. We have also not found any panchanama for recovery of the said e-mails as relied upon documents to the show cause notice dated 16.12....
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.... appellant in support of their submissions to the extent that statements recorded under Section 108 in respect of certain persons relied upon by Adjudicating Authority are either insufficient or inadmissible to be taken as evidence to confirm the alleged demand of differential duty. He has submitted that reliance placed by Adjudicating Authority on the judgment viz - M/s Shalini Steel Vs Commissioner of Central Excise [2011 (269) ELT 485 (AP)] and Murari Lal Harish Chandra Jaiswal Vs CCE, Ghaziabad [2012 (280) ELT 471 (Tri-Del)] is not proper as in these cases, there was a finding of Judicial authorities to the effect that submissions of witness do not lend much support to the case of appellant nor it discloses any prejudice being caused to the appellants. Whereas, in present appeal, the statement of witness i.e. Shri Manoj Kumar Uphadyay and relevance on a contract between M/s Rotomac Global Pte Ltd., Singapore and M/s Bagadiya Brothers (Singapore) Pte Ltd., Singapore are the sole basis for the entire allegation of under valuation. Hence, denial of cross examination was bad in law and vitiated the whole proceedings leading to confirmation of demand. He has also tried to distinguis....
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....tements are subsequently retracted or resiled from, it becomes necessary for the Department to produce other evidence which is of an independent nature which corroborates the retracted statements." In that case, the Commissioner had proceeded on the basis of the retracted statements of persons not offered for cross-examination. There again, it was contended by the department that the retraction made beyond 20 months after the initial statement, would have no effect in the eyes of law. The Court negated the above statements and held as under : "41. What the above submission overlooks is the 'reliability' of such statements. Once it is shown that the maker of such statement has in fact resiled from it, even if it is after a period of time, then it is no longer safe to rely upon it as a substantive piece of evidence. The question is not so much as to admissibility of such statement as much as it is about its 'reliability'. It is the latter requirement that warrants a judicial authority to seek, as a rule of prudence, some corroboration of such retracted statement by some other reliable independent material. This is the approach adopted by the CESTAT and the Co....
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....elines and procedure in the interest of fair play and bonafide opportunity to person against whom Department has levelled charges based on these evidences only. Therefore, the fact that there is no cross examination of witness, no details of proceedings under which so called e-mails, documents were obtained by Department or produced by any of the witness or appellant, non-compliance of statutory provision before admitting electronic evidence etc., would indicate that reliance placed on such statements and documents are not tenable in the given factual matrix. 18. Therefore, we find in the facts of the case, the evidence relied upon are either insufficient or inadmissible to establish receipt of additional amount by appellant company, who exported the goods for the reasons, as under: (a) the statements relied upon, in the absence of cross-examination of key persons and lack of any other cogent and admissible corroborative evidence, in the given factual matrix, cannot be a goods evidence to allege that extra or additional consideration has been received by the appellant company, who had exported the consignment (b) there is lack of mandatory compliance to admit e....