TaxTMI 
TaxTMI 
2005 (2) TMI 314
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....on high seas sale basis; that they filed declarations in terms of Rule 10(1) of the Customs Valuation (Determination of Price of Imported Goods) Rules, along with Bill of Lading, Invoice Packing List, Certificate of Origin, Sales Contract/Proforma Invoice, etc.; that the goods imported by them were assessed to duty and after examination of the goods, the clearance was allowed; that subsequently a doubt was entertained by the Department about the genuineness of the declared price by alleging that the unit price of wood veneer had been given in US $ per cubic meter whereas generally only logs are sold in cubic meters (M3) and not veneers which are sold in square meter (M2); that on being asked, they submitted the original manufacturer's invoice and packing list which were received by them through their supplier; that the Customs Officers searched their premises on 16-5-2001 but no incriminating document was recovered by the officers; that the statement of Shri Sanjiv Agarwal, Chief Executive was also recorded. 2.2 He, further, mentioned that the Department is alleged to have obtained the export document under which the impugned goods were supplied by the manufacturers to M/s. Para....
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.... under :- "In these circumstances, the presumption to be raised under Section 139(ii) of the Customs Act could not be raised because the documents did not bear any signature, did not come from proper custody and it is difficult to understand why the Indian Customs did not interact with the Japan Customs and obtain authentic copies of the document from the latter." 4.1 The learned Advocate mentioned that Section 78 of the Indian Evidence Act contains the provisions regarding proving of public documents; that sub-section (6) of Section 78 of the Evidence Act provides that "public documents of any other class in a foreign country" may be proved "by the original, or by a copy certified by the legal keeper thereof with a Certificate under the seal of a Notary-Public, or of an Indian Counsel or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country". He further mentioned that Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948, empowers, every diplomatic and Consular officer in any foreign country to administer any ....
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....re equally titled on both sides. (iv) The imports are also sometimes denominated in CBM." He contended that the Department has not put forward any concrete data or proof to substantiate their allegation that the invoices submitted by the Appellants are not genuine; that there is no basis whatsoever to reject these manufacturer's invoices; that no differential duty is payable by them nor any penalty is imposable on any of the Appellants. 5.Countering the arguments, Mrs. Krishna A Mishra, learned Senior Departmental Representative, submitted that the documents relied upon by the Department are not public documents as are dealt with in Section 78 of the Indian Evidence Act; that only the Customs authorities can get these documents through proper channel; that the Department obtained these documents from the Italian Customs authorities through the Directorate of Revenue Intelligence through the High Commission of India, London; that there is a vast difference noticed between the value as per documents relating to export and the invoice price as per the manufacturer's invoice submitted by the appellants; that the argument of the Appellants th....
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.... of the competent Authority namely the Customs at the port of exportation; that it is thus established that the Appellants have wilfully misdeclared the value of the impugned goods and have submitted the documents in which the actual value of the goods had been suppressed for assessment purposes. Finally, the learned Senior Departmental Representative relied upon various decisions, some of which are : (i) CC, Jaipur v Indian Watch Parts Mfg. - 2004 (171) E.L.T. 141 (ii) Craft Studio v CCE, Jaipur - 2004 (163) E.L.T. 109 (iii) Weston Components Ltd. v. CC, New Delhi - 2000 (118) E.L.T. 199 (iv) R.J.S. Studios (P) Ltd. v. CC, Delhi - 2000 (118) E.L.T. 350 7.In reply, the learned Advocate mentioned that the documents evidencing receipt from Italian Customs were not mentioned in the show cause notices and were not part of the relied upon documents; that accordingly these documents can not be introduced through filing of Cross Objection; that Revenue can not supplement its case by filing Cross Objection, that it ....
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....ot been furnished by the Revenue to the Appellants and there is nothing on record to show that the price declared therein is correct as no statement of the manufacturers concerned has been given to the Appellants or brought on record. In the case of V.K. Impex, supra, the Tribunal did not uphold the order enhancing the value of the imported goods on the basis of photocopies of the unsigned documents though as per the report given by the U S Customs, foreign supplier had accepted the payment in US dollars, by holding that "the authenticity of the photocopies of the documents is suspected when neither the originals have been produced nor the signatures of the officers making enquiries are appearing on the photocopies of original." The Tribunal also observed in V.K. Impex case that "the Appellants have produced on record the evidences showing importation of the contemporaneous imports at the same value at which the Appellant had imported the goods." In the present matters also the Appellants have submitted the contemporaneous imports which show that the prices at which they have imported the goods are not abnormal but are consistent with the prices of the contemporaneous imports. Infa....
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.... Customs, New Delhi reported in 2000 (123) E.L.T. 1022 (Tri) = 2000 (123) RLT 381 (CEGAT)." 9.The Tribunal in South India Television case has also found force in the Appellants' submission that there is a possibility of the export declaration price being on the higher in order to claim higher export incentive and in such circumstances, the transaction value has to be accepted. Shri Sanjeev Agarwal, Chief Executive of the appellant Company, has clearly deposed in his statement dated 16-5-2001 that there might be a possibility of some kind of export /import benefits or adjustment in taxation in those countries. The Revenue also does not seem to have checked up the genuineness of the manufacturers' invoice from the Customs/Revenue Authorities of the respective countries or from the manufacturers themselves. No basis has been mentioned in the Report received from USA for reporting that the invoice submitted by the Appellants was tampered with. The Supreme Court in the case of East Punjab Traders, supra, besides the fact of source of obtaining the document, has held that the presumption under Section 139(ii) of the Customs Act can not be raised because the document did not bear any s....