TaxTMI 
TaxTMI 
2024 (9) TMI 1944
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.... KDL-CUSTMOOO-COM-16-1718 dated 27.4.2017 F.O.Dt.16/05/2024 2. Avinash Jindal C/11504/2017 Parekh Timber P Ltd KDL-CUSTMOOO-COM-16-1718 dated 27.4.2017 F.O.Dt.16/05/2024 3. Avinash Jindal C/11505/2017 Batra Timber Traders P Ltd KDL-CUSTMOOO-COM-18-1718 dated 27.4.2017 F.O.Dt.16/05/2024 4. Avinash Jindal C/11508/2017 Batra Timber Traders P Ltd KDL-CUSTMOOO-COM-19-1718 dated 27.4.2017 F.O.Dt.16/05/2024 5. Avinash Jindal C/11522/2017 Radha Swami KDL-CUSTMOOO-COM-15-1718 dated 27.4.2017 F.O.Dt.16/05/2024 And the following appeals are filed by the importer and co-appellant Shri Rajender Aggarwal and Avinash Jindal:- SI. No . Appellant Appeal No. Importer OIO no. passed by Commissioner / Pr. Commissioner, Customs, Kandla Relying upon Final Order dated16.05.2024 No.11085-11091 1. Rajender Aggarwal C/11521/201 7 Jindal Wood KDL-CUSTM-OOO-COM020-17-18 dated 27.4.2017 F.O.Dt.16/05/202 4 2. Avinash Jindal C/11531/201 7 Jindal Wood KDL-CUSTM-OOO-CO....
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....id order reproduced below:- 4. We have carefully considered the submissions made by both the sides and perused the records. We find that in all appeals a common investigation has been conducted in all the appeals including the case of Beena Sales Corporation. The common investigation has been conducted by DRI. All the evidences are also common for all the cases. The statements of Shri Rajendra Agarwal and Shri Avinash Jindal are also common. The same documents were recovered from the premises of Shri Rajendra Agarwal and Shri Avinash Jindal. The very same documents were relied upon in all the cases. Therefore, there is absolutely no difference in the fact, evidences and investigation in all the cases. In the case of Beena Sales Corporation, this Tribunal vide Final Order No. A/10376/2019 dated 26.02.2019 considering all the facts, evidences, statements of various persons, documents, passed the following order: 7. We have heard both the sides and perused the records. We find that the differential duty demands in case of Annexure C-1 and Annexure D-1 of the show cause notice has been made on the basis of e-mails retrieved from Shri Rajendra Agarwal and Shri Avinash ....
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....ss examination of Shri Vineet Jha could not be done as he did not offer for the cross examination. We find that the demand is based upon the documents alleged to have been seized from above persons which are third parties and their statements. However, once these persons have retracted from their statements in the cross examination and also refused the veracity of the documents, in such case, their statements and the e-mails cannot be relied upon as cogent and tangible evidence to substantiate the allegation that the Appellant had declared the lower value of the imported goods for evasion of custom duty. The e-mails found from the e-mail IDs of Shri Avinash Jindal and Shri Rajendra Agarwal were not responded by the Appellant. No incriminating documents were seized from the Appellant during the course of investigation. The e-mails retrieved from the email ID of the Appellant has no inculpatory contents. The documents relied upon by the investigating authority and the adjudicating authority were not seized from the Appellant but were of the third party documents and the same were not corroborated by any independent evidence at the Appellant's end. 7.2. We find that in one of....
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..... For instance in case of demand under Annexure D - 1, the Revenue has relied upon the documents of Hard disk of Shri Rajendra Aagarwal i.e file found in file path "live data /01/Agarwal-Teak 19.01.2010" said to be related to Bill of entry Nos. 137753 dated 25.06.2009 and 141411 dated 16.09.2009. It is alleged that the details in said file path is matching with the accounts statement found in file path "live data/01/Accounts/Ambrish" and that it pertains to transaction of material purchased by Shri Rajendra Agarwal from one Ambrish Bhai at the rate and quantity listed therein and a few of these transactions are against the name " Beena Sales". That Shri Rajendra Agarwal in his statement has stated that the rate at which he sold the sold the material listed against the name of Beena Sales was his purchase price plus US$40 per CBM, which was his margin. By matching the number of containers and billed amounts from the documents found at "live data /01/Agarwal-Teak 19.01.2010", it is alleged that the Appellant under-valued the material in order to pay lesser custom duty. 7.4. We find that the documents in hard disk relied upon by the Revenue were solely maintained by Shri Raje....
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.... and quantity and rate of material. The value mentioned in "A/c Export Trading" is not comparable with the corresponding bill of entry. The Customs authority at the time of importation, after examination of the goods, has enhanced the value from US$ 350 to US$ 422 per CBM. In such case, the enhancement made in the impugned order is not sustainable. 7.6. In case of other demands for other imports we find that in case of Bill of Entry Nos. 151367 dated 29.4.2010, 155707 dated 02.7.2010, 2321538 dated 11.11.2010, 2354906 dated 23.11.2010, 2422349 dated 11.12.2010, 3245435 dated 19.04.2010, 3471154 dated 11.05.2011, the Revenue has relied upon various invoices sent through e-mail by Shri Avinash Jindal to the proprietor of the appellant to allege that the value and quantity declared in the said e-mail was the correct amount and that the materials mentioned in the said emails were declared at much lower values and quantities when imported. The value in the invoices has been made basis to enhance the value declared by the Appellant. The invoices found in the email and the statement of Shri Avinash Jindal are in isolation without any corroboration. None of the e-mails were replie....
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....dal through e-mail to one Shri Sunil Gupta has also been relied upon. On the basis of container number on the packing list matching with the bill of entry filed by the Appellant, it is alleged that the Appellant under-valued the imports. 7.8. The account statement has been relied upon to show that the value of material of US$ 55400 is actual. We find that the document relied upon by the Revenue was of Shri Avinash Jindal and only on the ground that name of Shri Deepak Maloo is appearing, it cannot be concluded that the payment of said amount was made by the Appellant for such materials. There is no evidence that the Appellant paid any such amount against the bill of entry No. 156486. The e-mail sent by Shri Avinash Jindal is to Shri Sunil Gupta and the Appellant is not concerned with such e-mail. Shri Deepak Maloo was never questioned regarding either of the documents nor the statement of Shri Sunil Gupta was recorded or he was summoned to ascertain the correctness of the transaction. In case of Bill of Entry No. 798 dated 14.8.2010, the e-mails of Shri Avinash Jindal and his statement dated 05.9.2011 have been relied upon to allege that Shri Avinash Jindal in partnership ....
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.... were imported by the Appellant or they were imported at the rates mentioned, hence the demand is incorrect. 7.10. In case of Bill of Entry No. 3420395 dated 5.5.2011 on the basis of invoice located in file path "live data/01/DC215/Summary" found from the hard disk of Shri Rajendra Agrawal, it is alleged that two containers of Sudan timber shown in the invoice were purchased at higher rates and quantity than declared in the bill of entry. The statement of Shri Deepak Maloo has been relied upon to substantiate the claim. We find that only for the reason that the container number in the invoice matches with the bill of entry itself cannot lead to the conclusion that the material in the said containers were of the same quantity and quality, as indicated in the invoice. Further, there is no evidence for connecting Shri Deepak Maloo with the said invoice only on the basis of his statement. 7.11. The allegation of cash payment by the Appellant is also based upon the pages of "made-up file" recovered from Shri Avinash Jindal. It is alleged that the said details pertain to cash payments for unofficial part of transaction. We find that the documents does not indicate wheth....
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....r and numbers mentioned in the email match with those listed on the Bill of Entry of the Appellant, it is not sufficient to prove that the material was under-valued. Even, assuming that the material indicated against the container number mentioned in the bill of entry matches the container imported by the Appellant, but there is no clear evidence to determine as to which figures in the e-mail correspond to the actual rate at which the materials were purchased. 9. In respect of hard disk recovered from the premises of the Appellant, the Revenue has alleged that it contained unsigned invoices and packing list of Timber imported from various countries. We, however, find that the Appellant was not shown these documents nor was he questioned about the same. It is alleged that in hard disk seized from Shri Rajendra Aagarwal, the quality and quantity of Timber indicated in the accounts statement under file path "livedata/01/Account/26.01.2010", file path "livedata/01/Account/ Bina Sales Corpn) 22.12.2010, file path "livedata/01/Account/ Bina Sales Coprn 23.07.2010", matches with the various packing lists. We are of the view that only by matching the quality and quantity of Timber....
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....o in his statement dated 17.10.2013 has stated that the rate of material imported from Sudan were re-negotiated with Shri Rajendra Agarwal after it was imported due to inferior quality and in case of material imported from Ecuador, which was purchased on high sea sales, the payment of the same was made to the seller after unloading of the material. He also stated that the actual rate for both the transactions were declared. Thus, on the statement of Shri Rajendra Agarwal and in the light of the fact that Shri Deepak Maloo in his statement was not questioned in respect of such containers, there is no ground to enhance the value. There is no evidence that the rates of the goods imported by the Appellant should be valued on the basis of number of pieces since Timber has its own characteristics of quality, weight and size and differs from log to log. The allegation of the extra consideration towards undeclared value and quantity of the goods is only on the basis of documents of Shri Rajendra Agrawal and if the name of the appellant is shown in such records, it can, ipso-facto, lead to the conclusion that the Appellant paid extra consideration over and above the declared value in the bi....
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....nate modes of valuation and allow evidence of value of goods other than those under assessment to be the basis of the assessable value. Thus, Rule 5 allows for the transaction value to be determined on the basis of identical goods imported into India at the same time; Rule 6 allows for the transaction value to be determined on the value of similar goods imported into India at the same time as the subject goods. Where there are no contemporaneous imports into India, the value is to be determined under Rule 7 by a process of deduction in the manner provided therein. If this is not possible the value is to be computed under Rule 7A. When value of the imported goods cannot be determined under any of these provisions, the value is required to be determined under Rule 8 "using reasonable means consistent with the principles and general provisions of these rules and sub-section (1) of Section 14 of the Customs Act, 1962 and on the basis of data available in India." If the phrase 'the transaction value' used in Rule 4 were not limited to the particular transaction then the other Rules which refer to other transactions and data would become redundant. 14. It is only when th....
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....1-12-2003. In that case, the demand also would be time-barred. As the demand of duty is not sustainable in view of our above findings, penalty under Section 114A and the demand of interest are not maintainable. The Orders-in-Original cannot be sustained. Hence, we, allow these appeals with consequential relief, if any. The aforesaid order was upheld by the Hon'ble Apex Court as reported in Commissioner of Customs vs. Truwoods Pvt. Limited -2016 (331) E.L.T. 15 (S.C.). We are of the view that the ratio of aforesaid case is squarely applicable to the given facts of the case as only on the basis of third party records and statements with no corroborations with independent evidence. Our views are also based upon the Tribunal order in case of Pee Kay Steel Castings Pvt. Limited - 2016 (340) E.L.T. 389 (Tri. - Bang.) wherein the Tribunal held that : "6.8 We find sufficient force in the arguments of the appellants that the Revenue is not able to prove any undervaluation or misdeclaration and thus able to convincingly reject the transaction value declared by the importer. There cannot be any case for enhancement of value just by citing importation of contemporary period b....
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....delivery at the time and place of importation in the course of international trade where the seller and the buyer have no interest in the business of each other and the price is the sole consideration for the sale or for offer for sale. Therefore, what has to be seen by the Department is the value or cost of the imported goods at the time of importation, i.e., at the time when the goods reaches the customs barrier. Therefore, the invoice price is not sacrosanct. However, before rejecting the invoice price the Department has to give cogent reasons for such rejection. This is because the invoice price forms the basis of the transaction value. Therefore, before rejecting the transaction value as incorrect or unacceptable, the Department has to find out whether there are any imports of identical goods or similar goods at a higher price at around the same time. Unless the evidence is gathered in that regard, the question of importing Section 14(1A) does not arise. In the absence of such evidence, invoice price has to be accepted as the transaction value. Invoice is the evidence of value. Casting suspicion on invoice produced by the importer is not sufficient to reject it as evidenc....
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....the present case, the Department has relied upon export declaration made by the foreign supplier in Hong Kong. In this connection, we find that letters were addressed by the Department to the Indian Commission which, in turn, requested detailed investigations to be carried out by Hong Kong Customs Department. The Indian Commission has forwarded the export declarations in original to the Customs Department in India. One such letter is dated 19-9-1996. In the present case, the importer has alleged that the original declarations were with the Department. That certain portions of the originals were not shown to the importer despite the importer calling upon the adjudicating authority to do so. Further, by way of Interlocutory Application No. 4 in the present civil appeal, an application was moved by the importer calling upon the Department to produce the original declaration in the Court. No reply has been filed to the said I.A. till date. In the circumstances, we are of the view that the Department had erred in rejecting the invoice submitted by the importer herein as incorrect. Further, the Department received from the Hong Kong supplier a Fax message dated 22-7-1996. That was produc....
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....n in cases where the transaction value is to be rejected under Rule 4. In the present case, the show cause notice indicates that the Department had invoked Rule 8 without complying with the earlier rules." 14. In the present case the Appellant has imported goods on correct transactional value and the allegation of undervaluation are not supported by any cogent evidence. Further the goods by other importers are also on same price. Hence in view of above judgments we find that the declared value cannot be doubted. We also find from the data submitted by the Appellant that the contemporaneous imports of such or like goods were allowed to be cleared only at the same price or comparable price, but in fact at price lower than those declared by the Appellant. There is no reference of any excess payment made to any of the suppliers, the mode of such payment, manner of payment or person through whom such payments were made. In absence of same, it cannot be held that the Appellant has under-valued the imported goods. Even though the other importers were importing same quality, quantity of goods at the same prices, no question has been raised against such importers. We have gone thro....
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.... Tourism of Tanzania has shown the sale price of Timber as $ 130 PMT as against the enhanced value of $ 600 to $ 800. It is not disputed that the Appellant had imported the rejected grade / short length / off size/ off cut size timber, which is more than 33% of the quantity of the imported timber. In such case, there was no reason to enhance the value of rejected timber as per good quality timber. 16. The goods at the time of importation were physically examined by Customs authorities and were found as per the declared description. Thus, in absence of any contrary evidence, the value of rejected grade timber cannot be enhanced on the basis of good quality timber. Our views are based upon Tribunal decision in case of Commissioner of Customs, Chennai vs. Adani Exports - 1999 (111) E.L.T. 143 (Tribunal), wherein the Tribunal held that : "11. We find that the department has not been able to lead any evidence to show that the Invoice under which these goods have been imported, i.e. this transaction, is a fraudulent one inasmuch as that there was some fraud in the value declared and that this was not therefore the fair value. There is no evidence to show that there was ....
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....hat the two sets of products are even comparable products. 13. With respect to the contemporaneous import relied upon by the importer namely that by M/s. Victoria Marines, the department has brushed it aside saying that it. was a clever set-up by associates of the importers to pave the way for the bigger quantity of imports subsequently at much higher prices. Even if the department harbours such suspicions, there is nothing on record to show that detailed investigations were resorted to by the department to uncover these suspicions through sufficient evidences. It is one thing to say that M/s. Victoria Marines were associates of the present appellants and another thing to show by evidence that not only were they associates of the present appellants but also that they were party to a conspiracy with the present appellants leading to the said import of the alleged pilot consignment. There is not an iota of evidence on record led by the department to support their allegations in this regard. Therefore, we cannot but conclude that the said contemporaneous imports relied upon by the appellants are good evidence under Section 14 of the Customs Act." 17. The burden to pr....
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.... DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE HRISHIKESH ROY For Petitioner(s) Mr. Vikramjit Banerjee, ASG Mr. P.V. Yogeswaran, Adv. Ms. B. Sunita Rao, Adv. Ms. Neelam Chand, Adv. Mr. Hnuman Singh, Adv. Mr. Joydip Roy, Adv. Mr. B. Krishna Prasad, AOR For Respondent (s) UPON hearing the counsel the Court made the following ORDER Delay condoned. The Civil Appeal is dismissed in terms of the signed order. Pending application, if any, stands disposed of. (SANJAY KUMAR-I) AR-CUM-PS (SAROJ KUMARI GAUR) COURT MASTER (Signed order is placed on the file) IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No. ..........................of 2019 (Arising out of D No 38761/2019) Commissioner of Customs, Kandla Appellant(s) Versus M/s Beena Sales Corporation  ....