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2023 (8) TMI 1294 - AT - CustomsUndervaluation of imported goods - MDF boards - large-scale evasion of customs duty - Section 14 of the Customs Act, 1962 - test report disclosed the samples which do not confirm to Grade I or Grade II - inadmissibility of statements - non-availability for cross-examination. HELD THAT:- The statements made and signed by the dead persons or who cannot be found remain valid and admissible as long as these statements are made in the course of business. Therefore, the Commissioner was right in stating that “Customs Officer is not a Police Officer - Statements made before him under Section 108 of Customs Act, 1962 are admissible in evidence and are not hit by Section 25 of Indian Evidence Act” as is held by the apex court in the case of ROMESH CHANDRA MEHTA VERSUS STATE OF WEST BENGAL [1968 (10) TMI 50 - SUPREME COURT]. Whether these statements made by Shri Sathyanarayana was it done in the course of business and has it been corroborated with other statements and evidences on record? - HELD THAT:- The statements and the under-invoicing documents were also corroborated by other importers of MDF from Green Panel Products, Malaysia whose names figured in the attachment of the incriminating email. It is also a fact that the other importers to whom show-cause notices were issued, approached the Settlement Commission Bench at Chennai. They admitted and paid the duty differences based on the incriminating email recovered from V R Marketing at Chennai and recovered under Mahazar. The fact that the other importers accepted the incriminating email and under-invoicing documents, goes to prove the authenticity and correctness of all the documents recovered. In view of these corroborated evidences, it is seen that Shri Sathyanaraya’s statement and the documents recovered from his computer (extracted below) are authentic, therefore, the Commissioner was right in redetermining the value of the goods of 15 Bills of Entry as Rs.1,61,16,901/- [CIF] under Rule 4 of the Customs Valuation Rules, 1988 read with Section 14 of the Customs Act, 1962. Accordingly, the differential duty of Rs.35,49,849/- demanded under proviso to Section 28(1) of the Customs Act, along with interest is also upheld. The goods are liable for confiscation and accordingly, the confiscation is upheld in all the 15 Bills of Entry. The High court of Kerala in the case COMMISSIONER OF CUSTOMS, COCHIN VERSUS OFFICE DEVICES [2009 (6) TMI 66 - KERALA HIGH COURT] has held that 10% of the value as RF is reasonable and upheld the same, hence the redemption fine of Rs.2,00,000/- which is only 10% of the value is upheld. As per proviso to Section 114A of the Customs Act, 1962, “provided also that where any penalty has been levied under this Section, no penalty shall be levied under Section 112 or Section 114.” Accordingly, since penalty imposed under 114A is upheld, the penalty of Rs. 25,000/- on M/s. Ply Point under Section 112(a) of the Customs Act, 1962 is set aside. Appeal disposed off.
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