TMI Blog2007 (6) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... zed was revised to Rs. 24,26,234/-. 3. During the course of investigation, a number of statements got recorded by the DRI from the appellant Shri Rakesh Chandna and also Shri Sanjeev Murgai, Manager of the Company, who is the brother-in-law of Shri Rakesh Chandna. Based upon the statement dated 24-8-2000 of Shri Sanjeev Murgai, the allegations were made that the imported goods namely, plywood, MDF Board, Veneers etc., had been under-valued by adopting a method, in which the supplier sent invoices and packing lists for a lower value and quantity and the same were used for the customs clearance. The correct description of the goods was stated to be not declared to the Customs. When inflicted with the documents seized at Calcutta Airport from Shri Rakesh Chandna, Shri Sanjeev Murgai had stated that, it appeared that the goods imported by the appellant-company were misdeclared in terms of value as well as quantity for which they were not involved in any manner. 4. The record also indicated that several summons were issued to appellant Shri Rakesh Chandna (as many as seven in the year 2000) but he never bothered to appear before the authorities for recording his statement. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the other 28 bills of entries were also misdeclared in terms of description/quantity/value. After referring to various provisions under the Customs law, a show cause notice charged the appellant-company. Shri Rakesh Chandna and Shri Sanjeev Murgai for the duty evasion amounting to Rs. 3,95,58,229/-. The Notices also demanded this amount besides contemplating confiscation of goods and penalty. 8. In the impugned order, the learned Commissioner of Customs, after taking into account the submissions of the appellants and observing that the personal hearing could not be conducted as the noticee failed to appear (para 26 of the order refers). Relying upon the incriminating documents, he had arrived at a decision that the value declared by the overseas supplier in their export invoice/documents were far higher than what were declared by the appellants before the Indian Customs for the purpose of assessment of duty. It is observed that such an evidence was recovered from the possession of the appellant Shri Rakesh Chandna in the Calcutta Air port and were shown to Shri Sanjeev Murgai, Manager of the appellant-firm/company who had confirmed the truth of the contents. 9. Relying upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant at Calcutta Airport belonged to the appellant, stated that dollars and Indian rupees and also the documents reported to be seized did not belong to the appellant and they were not claiming the seized currency in this case. The learned Counsel further contended that :- (a) There was violation of principles of natural justice by the authorities below as the application for adjournment filed by the appellants was not dealt with by the learned Commissioner when hurriedly passing the impugned order; (b) DRI had no jurisdiction to issue show cause notices under Section 28 of the Customs Act; (c) None of the documents relied upon by the department, stood authenticated as per the procedure laid down under Section 3(ii) of Diplomatic and Consular Officers (Oaths and Fees) Act, 1948; (d) The department had relied upon the documents obtained from the foreign countries without affording any opportunity for cross-examination to the appellants; (e) The fax messages received are not admissible evidence because they were not signed; and (f) The fax messages are not relevant to the allegation that they were engaged in evasion of duty, because these messages had not specifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y as also the documents from the appellant Director Rakesh Chandna after following the proper procedure of drawing panchnama, in the presence of independent witnesses. According to him, the confessional statement recorded on the spot from the said appellant Director of the Company when caught in the act, cannot be over-looked especially when such a statement was made compatible by the statement of the Manager of the Company, Shri Sanjeev Murgai. He emphasized on the compatibility of documents recovered from Shri Rakesh Chandna with the concerned bills of entry. For instance, the fax message addressed by the appellant-company to the supplier in Thailand asking them to show a reduction in the price from US $ 230 per piece to US $ 195 per piece is dated 19-11-99. In this message the importer had also asked to ensure that the retrospective date namely 30-9-99 was shown, besides indicating that such a letter was required for Customs clearance. 15. The learned DR co-related this message with the undated reply to this letter which, according to him, goes to prove that the appellants were engaged in deliberate undervaluation. It was contended that by tallying of the rate, the details of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o arrive at the assessable value of the imported goods under Section 14 of the Customs Act, 1962. It was also contended that statutory documents filed before Customs authorities in foreign countries and the foreign authorities who made such documents available to the Indian Customs on request cannot be ignored. According to him, the values reported by the foreign customs authorities constituted the correct transaction value of the goods under import and the goods were required to be assessed on these values due to over-whelming evidence. The Revenue relied upon the following statements to drive home the above contention :- (1) Surjeet Singh Chabbra v. UOI - 1997 (89) E.L.T. 646 (2) Lilachand R. Solanki v. Customs of Customs - 2004 (175) E.L.T. 279 (Tri. - Mum.) (3) Jagdish Shanker Trivedi v. CC, Kanpur - 2006 (194) E.L.T. 290 (Tri. - Del.) (4) Manohar Rajaram Chhabria and Orson Electronics v. Collector - 1997 (93) E.L.T. A133 (S.C.) (5) CC, Jaipur v. Indian Watch Parts Mfg. - 2004 (171) E.L.T. 141 (Tri.) 19. We have heard both sides at great length and perused the record. At the outset, we find that the entire events in this matter unfolded with the seizure of foreign c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of India has exercised its powers appointing the DRI officers as Customs officials . As long as the Government of India has no objection of DRI officials using the powers of Customs officers, there should be no grievance on this account for the appellants. 23. Before us there was a contention that the documents recorded by the Revenue had not been authenticated as per the procedure laid down under Section 3(2) of Diplomatic and Consular Officers (Oaths and Fees) Act, 1948. We have examined the provisions under this Act as appearing in the judgment of Vimal Chand (supra). It is obvious that Section 3 of this Act confers powers on Indian Diplomatic and Consular officers in foreign countries to administer any oath and do notarial act. As regards the objective of the said Act, it aims at providing the administration of oath by diplomatic and consular officers and to prescribe the fees leviable in respect of certain officials of their duties . In our view, the said Act is just a mechanism available so that notarial act, as available through notary public in India, could also be available abroad. The availability of such mechanism cannot be made into a mandate under the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equire that in any matters like this, the persons who have given the opinion should be examined in the presence of the appellants or should be allowed to cross-examination by them on such submissions made before the Customs authorities. 28. We do not therefore, find any inadequacy in the decision of the Commissioner in discarding the transaction value as declared by the appellants under Section 14 of the Customs Act. In our opinion, enough material exists especially those which are procured from the suppliers themselves and with co-relatable invoices. From the various citations referred to by the appellants, we do not find any of them could be of any use to them in saving from this embarrassment. On the contrary, the citations referred to by the Revenue upholding that there was no need for arranging the cross-examination of the persons who supplied the relevant documents to the investigating officers very much go in favour of the Revenue. 29. The contention of the learned Counsel for the appellants that in some documents, particulars of letters of credit were not shown etc. appears to us anemic. The contention that the documents received from abroad did not tally with the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not appear to be strong mainly because the Additional Director General in DRI has been formally delegated with the powers of Customs officers and is also designated as Customs Commissioner, ear-marked with jurisdiction running all over India. Issuing show cause notice, the reply of which has to be addressed to the Commissioner of Customs, has in no way prejudiced the appellants as it was just a workable arrangement for the Revenue without which overlapping jurisdictions of the Commissionerates in the length and breadth of India could have caused serious working problems for the tax administrators. We therefore do not find anything wrong in the system being followed/implemented in which the show cause notice stands issued by the Additional Director General in DRI (who is being designated as Commissioner of Customs). In our view it is the workable arrangement for an efficient functioning and that there is nothing wrong in it. 32. In our view contention that invoices and a copies of fax message did not bear particulars of letter of credit or container numbers makes no difference since comparative study undertaken goes to prove that there was under-valuation in respect of invoices ob ..... X X X X Extracts X X X X X X X X Extracts X X X X
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