Home Case Index All Cases Customs Customs + AT Customs - 2024 (3) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2024 (3) TMI 871 - AT - CustomsValuation of imported goods - stamping foils - rejection of declared value - enhancement of value - statement relied upon by the department was recorded under duress or under coercion or undue influence - It is seen that the department’s case is based primarily on the evidence of retrieval of data from the hard disk seized from the premises of the appellant firm - HELD THAT:- On consideration of overall circumstances in which the statement of director Shri. Ramesh K Gidwani was recorded and pattern of the same including the content of the initial statement which while indicating proforma invoice to be correct value did not mention the relevant grade of stamping foils also. The medical evidence about injuries and their treatments were mentioned while rebutting letters of the department in their retraction. It is also found that though the Hon’ble High Court of Gujarat in KIRAN TEX FAB PVT LTD & 1 VERSUS UNION OF INDIA THROUGH SECRETARY & 6 [2011 (5) TMI 941 - GUJARAT HIGH COURT] has not specifically dealt with the fact of coercion while granting relief of presence of advocate. The series of statements recorded thereafter of the directors are exculpatory. It is thus clear that they were serious doubts on record as to the nature of initial statement and the onus clearly shifted on the department to indicate that the initial statement dated 13.10.2010 was voluntary and same should have been subjected to examination-in-chief by the adjudicating authority, at least in the factual background of the matter before placing reliance on the same. When statement was retracted, the investigating officer instead of pronouncing his own version as to why the statement was voluntarily, should have instead of left this job to be done by the adjudicating authority while adjudicating the matter. Another opportunity before higher officer can be an apt course of action to follow in such situation - it is found that initial statement dated 13.10.2010 could not have been relied upon without discharge of burden by the department of same being voluntary by examination of the entire statement of director by the adjudicating authority. Apart from above, it is also found that there is no evidence on record of any excess payment having been made of excess remittance, and admission of the same. Thus, it is clear that not only Customs Valuation Rules have to be sequentially followed but also that the electronic evidence can only be relied upon by the department as per provision of Section 138C which lays down various conditions in sub clause (2) about which there is no mention of the same having been followed. Thus, in the facts and circumstances of the matter enhancement of value as well as appreciation of evidence has been improperly done in the impugned order - the impugned order is therefore, set aside - appeal allowed.
|