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2017 (10) TMI 305 - AT - Customs


Issues Involved:
1. Non-supply of certain documents relied upon in the order by the Commissioner.
2. Denial of cross-examination of a key witness, Shri K Miwa.
3. Discrepancies in the value and quantity of goods as mentioned in various documents.

Issue-wise Detailed Analysis:

1. Non-supply of Certain Documents:
The applicant argued that the Tribunal failed to consider the violation of principles of natural justice due to non-supply of certain documents, specifically a printout from the website www.citizen.co.jp and the examination report on Bill of Entry No. 462861. These documents were not included in the Show Cause Notice (SCN) and were not provided to the applicant before the adjudication process. The Tribunal acknowledged that the webpage of Citizen Watch Company was not a relied-upon document in the SCN, and its reliance without notice to the applicant constituted a failure to follow the principles of natural justice. The examination report, although claimed by the revenue to be available for inspection, was not supplied to the applicant, as there was no evidence of its provision. This non-supply of documents resulted in an apparent error in the Tribunal's order dated 03/01/2017, as the Commissioner relied on these documents to reconcile discrepancies in the quantity of imported goods, which was crucial to the case.

2. Denial of Cross-examination of Shri K Miwa:
The applicant contended that the denial of cross-examination of Shri K Miwa, whose emails were relied upon by the Commissioner, was not properly addressed by the Tribunal. The Commissioner denied the cross-examination on the grounds that Shri Miwa's correspondence was corroborative evidence and not primary. The Tribunal found this reasoning insufficient, especially since Shri Miwa's letter was based on investigations rather than personal knowledge and pertained to events from five years prior. The Tribunal also noted that the denial of cross-examination was not justified under Section 138B of the Customs Act, 1962, as no examination in terms of this section was conducted by the Commissioner. This issue was raised by the appellants but not addressed in the Tribunal's order dated 03/01/2017, leading to an error apparent in the order.

3. Discrepancies in Value and Quantity:
The applicant pointed out that while the SCN proposed a value of ?99.23 per piece for 2105 calibre, the Commissioner's order held the value to be ?100.22. Additionally, the Tribunal's observation that quantities in the air waybill and invoices of K Line Air Services did not match the appellant's declarations was contested by the applicant, who argued that the air waybills did not show quantity and description. The Tribunal found that the Commissioner reconciled the difference in quantity by relying on the examination report and the webpage of Citizen Watch Company, which were not supplied to the appellants. This reconciliation was crucial to the Commissioner's findings on undervaluation, which were not addressed in the Tribunal's order, resulting in an error apparent.

Conclusion:
The Tribunal concluded that the failure to address the non-supply of documents and the denial of cross-examination resulted in errors apparent in the order dated 03/01/2017. Consequently, the order No.A/85063/17/CB dated 03/01/2017 was modified, and the appeal was allowed by way of remand, keeping all issues open for reconsideration.

 

 

 

 

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