TaxTMI 
TaxTMI 
2026 (4) TMI 1287
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.... passed by the Additional Commissioner of Customs has been upheld. 2. The relevant portions of the order passed by the Commissioner (Appeals) are reproduced below: "5. I have carefully gone through the facts of the case, grounds of appeal and the submissions made by the appellant at the time of hearing and find that the appellant had imported 21 consignments of chemical "Ethylene Vinyl Acetate (EVA), out of which 18 consignments were already cleared by the appellant and three live consignments were seized by DRI. The department had come to the conclusion that the appellant undervalued the goods for clearance. In this regard, the department had relied on the statements of the proprietor of the appellant Shri Sabal Kumar Jain, Shr....
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.... this crucial fact has not been contested by the appellant. I further find that an affidavit was executed by the appellant stating that DRI officials coerced me to write the statement as per their dictation failing which I was threatened to be physically assaulted and arrested coupled with service consequences". The said affidavit was executed and notarized on 15.06.2009 which is after more than 6 months from the date of statements recorded by the department and appears to be after thought to cover up the issue. Moreover, the statements of the other importers were recorded in the similar lines which are indicative that the declared price of EVA by the appellant was less than that the actual price of the impugned goods at the countr....
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....and circumstances of the case and, therefore, does not call for any interference in this appeal. 5. The submissions advanced by the learned counsel for the appellant and the learned authorized representative of the department have been considered. 6. A perusal of the order passed by the Commissioner (Appeals) leaves no manner of doubt that the transaction value has been rejected solely on the basis of the statements made by the appellant, the high seas seller, and other importers under section 108 of the Customs Act. 7. The question, therefore, that arises for consideration is whether reliance placed by the learned Commissioner (Appeals) on such statements recorded under section 108 of the Customs Act, can be considered as relevant....
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....ement should be admitted in evidence, in the interests of justice, except where the person who tendered the statement is dead or cannot be found. In view of the provisions of subsection (2) of section 9D of the Central Excise Act or sub-section (2) of section 138B of the Customs Act, the provisions of sub-section (1) of these two Acts shall apply to any proceedings under the Central Excise Act or the Customs Act as they apply in relation to proceedings before a Court. What, therefore, follows is that a person who makes a statement during the course of an inquiry has to be first examined as a witness before the adjudicating authority and thereafter the adjudicating authority has to form an opinion whether having regard to the circumstances o....
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....f the Central Excise Act and section 138B(1)(b) of the Customs Act have been held to be mandatory and failure to comply with the procedure would mean that no reliance can be placed on the statements recorded either under section 14D of the Central Excise Act or under section 108 of the Customs Act. The Courts have also explained the rationale behind the precautions contained in the two sections. It has been observed that the statements recorded during inquiry/investigation by officers has every chance of being recorded under coercion or compulsion and it is in order to neutralize this possibility that statements of the witnesses have to be recorded before the adjudicating authority, after which such statements can be admitted in evidence." ....