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2023 (6) TMI 19 - AT - CustomsValuation of imported goods - Polyethylene Laminated in Rolls - PVC Flex Fabrics - rejection of declared value - rejection of request for re-export of the goods - burden to prove - demand of differential duty on enhanced value - confiscation - redemption fine - penalty - wrong supply made by the supplier or not - HELD THAT:- When irregularity was pointed out by the Revenue to the importer, the importer immediately waived issuance of Show Cause Notice, thereby preventing the Revenue from highlighting the case against them, for which they had to answer, in writing. That situation was very decisively/conveniently avoided by the importer! During personal hearing also, they appear to have made only formal representation, again perhaps trying to avoid the possible further probing/digging by the Adjudicating Authority, except requesting for permission to re-export. There are no reference to the e-mail sent by the supplier admitting wrong supply anywhere in the order of the Adjudicating Authority, though we are not suspecting the very existence of such e-mail from supplier at that stage. We do not want to guess here, that it was because they were not filed since the only ground urged was for re-export - That makes it clear that their claim of ‘wrong supply’ could possibly be an after-thought, which gave birth to the e-mail from supplier! It is thus clear that the Department or at least the Adjudicating Authority never had any chance to address/examine this issue of ‘wrong supply’ and hence, there was nothing for the Adjudicating Authority to prove or disprove on this, at the time of adjudication. When an irregularity was pointed out, instead of discharging the same, the respondent simply evaded by requesting for re-export. So, if we go by the findings of the Commissioner (Appeals), then it was for the Adjudicating Authority to even explain the irregularity, not just ‘wrong supply’. Thus, the burden which was on the respondent was never discharged and hence, there is no question of onus shifting on to the Revenue, to prove, what the learned Commissioner (Appeals) wanted or as desired by the respondent, that there was no ‘wrong supply’ - The requirements under the burden of proof are covered in Chapter VII of the Indian Evidence Act. Section 123 of the Customs Act requires burden of proof in certain cases and in the light of our above discussion, the ‘burden of proof’ which has not been defined under the Customs Act, therefore, has to be looked into from the point of the Indian Evidence Act. When a statutory authority entertains a doubt, a Show Cause Notice will be naturally issued based on certain observations and it is for the noticee to satisfy and to prove that the observations / allegations of the statutory authority issuing such Show Cause Notice is wrong. The burden of proof, therefore, is always there on the noticee initially, which has to be discharged in the first place - the fact as to the ‘wrong supply’ was advanced by the importer and hence, the burden of proof is always on the importer to prove the wrong supply to the satisfaction of the authority. The Commissioner (Appeals) was clearly in error to observe that the Department did not bring on record any material to contradict the contention of ‘wrong supply’ which, is not the intention or spirit of law - there are no attempt being made by the importer to furnish any other piece of evidence to justify its claim as to the wrong supply. The Commissioner (Appeals) committed an error in allowing the appeal of the importer without there being any evidence in support of the importer’s claim and hence, the impugned order cannot sustain - appeal of Revenue allowed.
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