2005 (2) TMI 314 - AT - Customs

Valuation (Customs) - enhancing the assessable value of the goods - demand of duty - Penalty - contemporaneous imports - HELD THAT - In the present matters 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. Infact the Commissioner himself has mentioned in one of the impugned Order that the contemporaneous evidences are equally tilted on both sides. There is no challenge of this finding in the impugned Adjudication Order by the Revenue. Once the Commissioner finds that the contemporaneous evidences support the prices declared by the Appellants the said evidence cannot be discarded and the value cannot be enhanced on the basis of other evidence. We also note that the Adjudicating Authority has also mentioned in the said impugned order that the Appellants have a genuine insurance cover issued ten days before the departure of the ship from the point of loading which the Department had not questioned to be incorrect and that the foreign supplier had a signed invoice from the US supplier. We find substantial force in the submissions of the learned Advocate that the Revenue has not brought any concrete material to prove that the invoices submitted by them are not genuine. The sole basis for enhancing the assessable value is the export declarations obtained by the Revenue from Italian Customs/US Customs of which original copies have not been brought on record. We therefore set aside all the impugned orders and allow all the appeals with consequential relief if any.

Summary

Issues Involved:
1. Enhancement of Assessable Value
2. Authenticity and Admissibility of Documents
3. Compliance with Legal Procedures
4. Presumption under Section 139 of the Customs Act
5. Contemporaneous Evidence and Transaction Value

Summary of Judgment:

1. Enhancement of Assessable Value:
The Commissioner of Customs enhanced the assessable value of the imported wood veneers and confirmed the demand for differential customs duty, imposing penalties on the appellants, M/s. Truwoods Pvt. Ltd. and Shri Sanjiv Agarwal. The appellants argued that their declared invoice price was based on the contract price and the manufacturer's invoice, which should be accepted as the transaction value u/s 4(1) of the Customs Valuation Rules. They contended that none of the four exceptions in sub-rule (2) applied.

2. Authenticity and Admissibility of Documents:
The appellants challenged the authenticity of the documents obtained by the Department from Italian Customs, arguing that these were unsigned and unattested photocopies with no evidentiary value. They cited several judgments, including *Md. Abdul Halim v. CC, Calcutta* and *Collector of Customs, Bombay v. East Punjab Traders*, to support their contention that such documents could not be relied upon.

3. Compliance with Legal Procedures:
The appellants argued that the Department did not follow the proper procedure for obtaining documents from a foreign country as mandated by Section 78 of the Indian Evidence Act and Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948. They emphasized that the documents should have been certified by the legal keeper or a notary public.

4. Presumption under Section 139 of the Customs Act:
The appellants contended that the presumption u/s 139 of the Customs Act could not be raised as the documents did not bear any signatures and were not authenticated. They argued that the Commissioner himself was unsure about the documents' authenticity, as reflected in his findings.

5. Contemporaneous Evidence and Transaction Value:
The Tribunal noted that the appellants submitted contemporaneous import evidence showing consistent prices with their declared value. The Commissioner also acknowledged that contemporaneous evidence was equally tilted on both sides and that the appellants had a genuine insurance cover and a signed invoice from the US supplier. The Tribunal found that the Department did not provide concrete material to prove that the invoices were not genuine and that the assessable value could not be enhanced based on unsigned and unattested documents.

Conclusion:
The Tribunal set aside the impugned orders, allowing all the appeals with consequential relief. The judgment emphasized that the transaction value should be accepted unless concrete evidence is provided to prove otherwise, and unsigned, unattested documents cannot be relied upon to enhance the assessable value.