TMI Blog2005 (4) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... lectronics Pvt. Ltd. consequent to the inquiries a show cause notice dated 4-12-97 with addendum dated 7-3-98 was issued seeking to - (i) demand Custom Duty on 42 consignments imported from Pearl one from Mirtex, on 4 consignments from Kuile other on grounds of mis-declaration of values in case of ATRT cable of country of origin also as per chart II A B, III to the notice. (ii) Confiscation of the goods seized. (iii) Penalty under Section 114A other provision of Customs Act, 1962. 1.3 By an order dated 29-12-2000, the adjudicator confirmed the demands of duty as per chart II A B III ordered the confiscation of the AT T Cable rolls gave an option to redeem imposed penalties. The demand of Rs. 6,50,385/- as per chart IV to notice was dropped goods were ordered to be released. Hence these appeals. 2. After hearing both sides and considering the matter it is found - (a) Penalty on the proprietary firm and its Proprietor imposed separately cannot be upheld. A Proprietary firm is not a separate legal person from its proprietor having a separate mind and identity. Imposition of penalty in this case on both the proprietor and the firm shows tot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be even considered for evaluation. (ii) further the authenticity of the documents which are recovered from the search of Puris residence at Delhi vide Panchnama dt 9-11-97 itself raises presumption against and about Puri being an impartial unbiased actor in the entire drama enacted by DRI officers. This panchanama, on perusal, reveals to be recording the search to be over in 90 minutes, from start to finish, when the house and numbering of the documents, sorting etc, itself would take 20 to 45 minutes to be gone through, besides the time taken for the house being searched in a professional manner. The recovery, of the documents, under this search itself is suspect. (iii) The entire role of Shri K.M. Puri gets fuzzy and curious on further reading of the show cause notice, where in para 26.5 Puri promises to submit details for 27 consignments in terms, will furnish the required information/documents about the actual agreed price and the export declaration at the earliest . While no such promise is perused. Whether such a promise was kept by Puri and if so with what results is not known. Thereafter in para 26.6 the notice records that on 11-11-97 Puri to be submittin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected. Since no seal of Customs on Authorities could be observed the authenticity is questionable. The law on the subject is very clear. The Apex Court in the case of Collector of Customs v. East Punjab Traders - 1997 (89) E.L.T. 11 (S.C.) laid down the law that if authenticity of the photocopies, if is suspect, their presumption under section 139 of the Customs Act cannot be raised. This position has been followed in the case of Taito Watch Manufacturing Inds. [2004 (173) E.L.T. 17 (Tri)] following this position in law, it has to be held that there is no material of primary or secondary nature of evidence available to be relied in this case. (c) Photocopies of export declarations made at the Port of Export have not been held to be material to enhance the values by this Tribunal (Taito Watch Manufacturing Inds. - 2004 (173) E.L.T. 17 (Tribunal) V.K. Impex v. Commissioner - 2002 (141) E.L.T. 564 (Tri.) where appeal filed by the Revenue was dismissed by the Supreme Court [2003 (158) E.L.T. A184 (S.C.)]. Nothing contrary has been shown, thus following this settled position, the material which is in the form of unsigned photocopies of declarations to Hong Kong Custom do not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the addendum dated 4-12-97, as supplied, reveals that Hong Kong Customs letter dated 4-3-1998 reads as...... Request for investigative assistance Kirle enterprises (HK) Ltd further to my letter of 26 August 1997, we have now completed verification of the values of four consignments of components parts of car cassette players exported by the above company to India in September 1993. Our investigation revealed that the company did issue the four invoices referred by you to the Indian Buyer, Wings Electronics, who reported that the cif values stated there be falsely represented to show only 59.17% of the true value. Two genuine invoices, showing the true values had been issued to cover the four consignments. Details of the invoicing arrangements are as follows :- B/L No. Date of Export False invoice No. Date False cif Values USD Genuine Invoice No. date Actual GF value USD 313729325 KE-93-117 10,300 KE-93- 44,000 dated 20-9-93 dated 18-9-93 117/118 314604523 KE-93-117 7,664 24-9-93 dated 20-9-93 dated 18-9-93 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luation by taking the shelter of mis-declaration of country of origin as USA when goods were marked as Australia, subsequent to the clearance by the proper officer having assessed cleared the goods after examination not having taken cognizance of the said mis-declaration of country of origin. There was is no mis-declaration of the import. Proceedings of confiscation duty demands therefore cannot be upheld are to be set aside. (h) When duty confiscation are not being upheld, the penalty as imposed is required to be set aside. (i) Penalty on M/s. Life Electronic Pvt. Ltd. appellant in C/416 imposed as goods of M/s. Wings Electronics stored in their godown rented to M/s. Wings Electronics were found as liable to confiscation. As per para 15.12 of the order impugned goods seized were ordered to be released by the adjudicator no appeal by Revenue is before us. The penalty is to be set aside. Since no duty demands and or confiscation of any goods is upheld, there is no case for upholding the penalty on appellant in C/416/01 on appellant in C/414/01. 3. Appeals are consequently to be allowed after setting aside the orders in the case of the appellants before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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