TMI Blog2005 (7) TMI 533X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 74, dated 7-5-98 and invoice No. KT-1071-98, dated 25-3-98 was examined on 9-5-98 by the Customs in the presence of the officers of DRI and it was found to contain reduced size (scale) toys and dolls made of plastics, the total CIF value of which, as declared in the Bill of Entry, was US $ 12,622.80 (equivalent to Rs. 5,04,281/-. This consignment was provisionally, released on payment of duty on the declared value against bond No. 2/98, dated 29-5-98 for Rs. 25 lacs and a bank gurantee of Rs. 5 lacs. The appellant had also imported a similar consignment of reduced size (scale) toys vide Bill of Entry No. 95, dated 30-9-97 and invoice No. KT-1298-97, dated 13-8-97, the CIF value of which as declared in the Bill of Entry was US $ 8938.80 equivalent to Rs. 3,23,406/-. This consignment was also released on payment of duty on the declared value. The DRI initiated enquiries with Hong Kong Customs Excise Department through the Consulate General of India, Hong Kong, for ascertaining the actual value of goods declared before them by the supplier. In pursuance of such enquiries, it transpired that there was gross variance in the value stated in the invoices issued by the supplier, M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. According to the appellant, there was nothing on record to indicate that the transaction fell in any of the exceptions specified in Rule 4(2) of the Valuation Rules. As regards the report of the Trade Licensing Bureau of Customs Excise Department, Hong Kong dated 24-7-99, it was contended that there was no basis given in the report for arriving at the CIF value of the goods or to show as to how and on what basis the purported actual CIF value was ascertained. It was stated that there was nothing on record to support the conjectural statement regarding issuance of false invoices at the request of the Indian importer, other than the report of the Hong Kong Customs official Ms. Y.Y. Chui. It was stated that the appellant would like to cross-examine Ms. Y.Y. Chui to bring out the correct and true facts of the case. It was also contended that the burden was on the department to prove under-valuation. 3.1 The Commissioner took note of the fact in Para 15 of the order, that the learned Counsel appearing for the appellant, did not dispute the authenticity of the letter dated 24-7-99 of Ms. Y.Y. Chui, Deputy Head of Trade Licencing Investigation Bureau of Hong Kong, but they wanted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Hong Kong, a sovereign authority that too duly signed by the competent officers of that country . The learned Commissioner noted that at no stage the importer or his advocate had ever disputed the authenticity of this document. Rather at the time of personal hearing, Shri R.K. Khunteta had specifically mentioned that he did not dispute the authenticity of this letter . The Commissioner proceeded to examine, in Paragraph 21 of the order, the issue of value of the goods for the purpose of assessment of duties keeping in view the provisions of Section 14 of the said Act and Rule 10(A) of the said Valuation Rules holding that he had reason to doubt the truth or accuracy of the value declared by the importer and that the transaction value as declared by the importer, could not be accepted under Rule 4(1). He, therefore, proceeded to consider the matter under Rule 5 and held that in spite of best efforts made by the department, and no transaction value could be gathered in respect of the identical goods sold for export to India and imported at or about the same time nor did the party bring any such import to the notice of the Commissioner. He was, therefore, unable to determine th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e signed or written it and it is executed or attested by the person who purported to have executed or attested by the same. In other words, presumption under Clause (a) is for dispensing with the proof of handwriting, signatures, execution and attestation of the documents. This presumption applies to both Clauses (i) and (ii) of Section 139. Under Clause (b) of Section 139, such document can be admitted in evidence, notwithstanding that it is not duly stamped, if it is otherwise admissible. It will, however, be seen from Clause (c) of Section 139 that the rebuttable prescription in favour of the truth of the contents of such document is confined only to documents falling in Clause (i) of Section 139 and not to documents falling in Clause (ii). This means the rebuttable presumption as to the truth of the contents of the document would be confined only to leases where any document is produced by any person or has been seized from the custody or control of any person, under the said Act or in any other law. Such a presumption of truth of the contents, will not apply to the documents that have been received from any place outside India in the course of investigation of any offence alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est of the Indian importer and the amounts were settled on D/P terms while the balances were paid by cheque or telegraphic transfer. The Commissioner had proceeded to determine the value under Rule 5, but could not find any transaction value in respect of identical goods at or about the same time, nor was he able to determine it by resorting to Rules 6 and 7. It is in this background that he placed reliance on the said report. The said report constituted a valid piece of material because from the official enquiries, it transpired that the export declarations made before the Customs Excise Department, Hong Kong in respect of these two invoices by M/s. Zaptron (HK) Ltd. were inaccurate declarations. The discrepancy in respect of these two invoices was detected by the Customs Excise Department, Hong Kong, as communicated in the said report dated 24-7-99 and there was no reason for the Commissioner to suspect the accuracy of the statements made therein, because the Customs Excise Department of Hong Kong was the authority who had conic to know about the inaccurate export declarations made by the said exporter before it and could, on comparison of the CIF values declared by the exp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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