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TMI Blog2009 (6) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence and the statements recorded in the course of investigation launched after receipt of specific information by the officers of Directorate of Revenue Intelligence, Hyderabad to the effect that the noticee was grossly under-valuing the price and paying less customs duty. The evidence so gathered inter alia indicated that :- "(a) The appellant had imported 42 consignments of tyres, tubes and flaps from June 2002 to February 2004. All the above consignments were cleared under lesser values after the first consignment imported by them from Nhava Sheva Port, Mumbai at the rate of USD 51 per piece was found to be un-remunerative. To this end, Shri Nazeer Ahmed Shaik, negotiated with the Chinese supplier for invoices with lesser values, which were accordingly sent, by the Chinese suppliers. Values before the customs authorities were declared on the basis of these invoices showing lesser values and cleared. As against the value declared at the rate of USD 51 cleared from Nhava Sheva, Mumbai, the value of Hyderabad imports for the comparable models of tyres was in the range of USD 23.25 to 25.50. The actual prices of these goods were also evident from the various E-mail message ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h those appearing in the books maintained by Shri Fiaz and the bank statement of the noticee. Though Shri Nazeer undertook to furnish the names of his African customers, he did not submit the same. (f) The appellant sold such imported tyres to their Indian dealers by arranging invoices for lesser values and the differential amounts in cash were collected through agents such as S/Shri Rajesh, Kallu Bhai & Jagat. These cash amounts were sent to Dubai for- payment of Chinese suppliers through TTs as evidenced from seized records. One such live example was detailed in reference of the consignment imported under Bill of Entry No. 397, dated 11-3-2004." 2.2 Based upon such evidences which were gathered, as indicated hereinabove, show cause notice dated 20-7-2004 was issued to M/s. ZZ Trading Establishment directing them to show cause as to why the assessable value of tyres and furniture cleared under Bill of Entry No. 397 dated 11-3-2004 should not be rejected and provisional; assessments should not be finalized adopting the assessable value of Rs. 33,02,352/- and differential customs duty amounting to Rs. 10,89,405/- should not be demanded under proviso to Section 28(1) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e residual amounts forthwith. I also demand interest under Section 28AB of the Customs Act as applicable. (3) I confiscate the tyres imported under Bill of Entry No. 397 which have been released provisionally. However, in respect of 38 other consignments though they are liable for confiscation since they have not been released under a bond I do not confiscate the consignments imported under these 38 Bills of Entry. I offer redemption of the goods confiscated under Bill of Entry No. 397 upon payment of Rs. 8,50,000/- under Section 125 of the Customs Act. (4) I impose a penalty of Rs. 2,61,89,711/- (Rupees Two crores sixty one lakhs eighty nine thousand seven hundred and eleven only) on M/s. Z.Z. Trading Establishment under Sec.114A of the Customs Act. I impose a penalty of Rs. 30,00,000/- (Rupees Thirty Lakhs only) on Shri Fiaz Ahmed Shaik under Section 112(a) of the Customs Act. I also impose penalty of Rs. 30,00,000/- (Rupees Thirty Lakhs; only) on Shri Nazeer Ahmed Shaik, Authorised Signatory under Sec. 112(a) of the Customs Act. (5) I impose a penalty of Rs. 2,00,000/- (Rupees Two Lakhs only) on M/s. R. S. Travels under Section 112(a) of the Customs Act. 2.4&e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts made to their suppliers in China from Dubai are already recovered by the DRI and he does not have any other documents. The total amount of telex transfer to Chinese supplies is US $ 2,68,131 equal to 1,23,34,026 Indian rupees and after adding other charges like landing charges of 1%, it would come to Rs. 1,24,57,356/- and this would be the differential value, if at all, paid by the appellant to the foreign suppliers. If this is to be added, to the assessable value, then the duty liability has to be discharged on this amount only. (iii) The third alternative suggested was that Shri Fiaz ShaiK in his statement has stated that the declared value to the customs was in the range of 60 - 70% of the actual value. This is further supported from the statements of the dealers who had stated that the appellants were making bills 60 -70% and paying balance in cash. Therefore, by applying this method, the appellants had worked put the duty liability, which would be considering the fact that there is an undervaluation to the tune of 30%, which is not admitted by the Adjudicating Authority. 3.1 It is his further submission that in respect of 12 Bills of Entry of 'panther' b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the custom authority for the purpose of discharging the customs duty liability. He would draw our attention to the submissions made by appellants and also bring to our consideration the Chart showing details of tyres and tubes imported by the appellant during the period January, 2002 to February 2004. He would draw our attention specifically to the bills of entry and try to point out that the invoice value was less and it has been enhanced by the authorities correctly. It is his submission that the appellant's contention that any one of the three ways as suggested by them should not be considered and he would also draw our attention to the fact that the appellant's computer printout which is showing a payments of additional amount in US $ made from Dubai to the Chinese supplier is an authentic proof that the appellant has been paying an amount over and above the invoice value. He would submit that this Bench in the case of Carpenter Classic Exim Pvt. Ltd. v. CC, Bangalore - 2006 (200) E.L.T. 593 had taken a view that statement of the Managing Director of the appellant-company admitting undervaluation of above 65% corroborated with statements would be enough for proving charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered and the differential duty be demanded on them. 5.3 On perusal of the records and the impugned order, we fine that the appellant has been proposing these three methods of valuation to the Adjudicating Authority in reply to the show cause notice and during the personal hearing also. The Adjudicating Authority while quantifying the issue cane to the following conclusion. "13. What remains now to determine, is the quantification. The quantification is challenged on various grounds. It is stated that the quantification should have been confined to the amounts alleged to have been paid to the Chinese exporters evidenced by the TTs etc. On perusal of the working of the quantification it is seen that it is based on two documents primarily viz., The GEQD report which retrieved data from the hard disk of computers used by Shri Fiaz and, register (13/R) which contained detailed costing of the imports, bill of entry-wise. As discussed earlier, both these documents are completely credible. The entries in these documents have cross corroboration and further confirmed by the statement of both Shri Fiaz Ahned Shaik and Shri Nazeer Ahmed Shaik. There is a further working bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to appreciate all these evidences at this juncture. Calculations have to be done by the Adjudicating Authority considering all the evidences which are placed before him in the original file. We would not like to go into the quantification of such an amount. 5.5 Accordingly, we find that the Adjudicating Authority should be given a chance to calculate the differential duty payable by the appellant, by choosing any one of the alternative method of valuation as suggested by the appellant, since there are evidences in all these three methods. We would not like to do the quantification at this juncture. Accordingly, upholding that there is an undervaluation in the consignments imported by the appellants, we remand the matter back to the Adjudicating Authority to re-quantify the amount by choosing any one of the method as indicated hereinabove for the purpose of quantification of the differential duty. After arriving at the differential duty, the Adjudicating Authority may also consider the imposition of penalties on the appellants, in accordance with law. It is also open to the Adjudicating Authority to impose interest, if he deems it fit. In view of this, we set aside the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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