TMI Blog2010 (12) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... Co., Japan for shipment to Singapore - Even though the assesee/appellant furnished particulars of similar goods imported from several countries no particulars were furnished in respect of import of identical or similar goods - Duty due towards goods cleared under the B/E has to be re-quantified as regards the NIKKALITE brand Retro Reflective Sheet Regarding confiscation - There is no evidence except the retracted admission that goods were not adhesive paper but NIKKALITE brand Retro Reflective Sheets - There is also no reliable evidence that the invoice covering this import was fabricated - Decided in the favour of the assessee Once the department proves that something illegal had been done by the manufacturer which prima facie shows that illegal activities were being carried, the burden would shift to the manufacturer - if the department proves that the trucks crossed the barriers carrying some cylinders for which no record was maintained in the factory nor any excise duty was paid then the presumption can be drawn that the trucks were carrying cylinders as per the capacity of the trucks - It is a basic common sense that no person will maintain authentic records of the illega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements recorded under Section 108, Shri Velu Chandrasekar admitted mis-declaring the quantity, description and value of goods covered by Bill of Entry No.436656. It transpired that the invoice filed with the said Bill of Entry was locally generated on the computer of the M/s. Ujwal International. The fact of fabrication of the invoice by Shri B.N. Satyanarayana of M/s. MAA Logistics has not been disputed. The invoice was shown as if it was raised by M/s. Wega Technologies of Singapore on VT. In adjudication, the Commissioner found that M/s. Wega Technologies did not deal with procurement and supply of goods imported or export of such goods. The goods covered by the Bill of Entry had been procured by Shri Velu Chandrasekar. It was determined under Mahazar that the goods covered by the Bill of Entry were actually in excess of the quantity declared. The quantities found in excess were as follows:- Window films (200ft x 8) -- 219646.78 ft. Window films (200ft x 20) -- 23083.42 ft. Nikkallite (200ft x 24) -- 2945.31 ft. 2.2. Shri Velu Chandrasekar had in his several statements admitted undervaluation by 50% of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Original Authority in toto and dismissed the appeals filed by VT and Shri Velu Chandrasekar. He summarized the disputes as follows:- Bill of entry No. and date Offence 436656 dt. 3/4/2003 Excess quantity of Window films and Reflective sheets not declared. 320364 dt. 20/5/2002 Retro Reflective Sheets described as self adhesive paper. Value mis-declared 394234 dt. 12/12/2002 Fabricated invoice. Value mis-declared 416047 dt. 10/2/2003 Value mis-declared Air way bill No.058 4036 4973 Goods confiscated u/s 111(f) for mis-declaration in manifest. 2.6. The Commissioner found that the appellants did not dispute mis-declaration of quantity and value in Bill of Entry No.436656. The Commissioner found that under above said Bill of Entry, enormous quantities of goods imported were suppressed. The assessee admitted to have undervalued the goods by 50%. This statement was corroborated by statements of other witnesses.Mis-declaration of NIKKALITE brand Retro Reflective Sheet as self-adhesive paper was established by chemical tests. As per proforma invoice of manufacturers of NIKKALITE brand Retro R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled law that quotation could not be relied on for the purpose of arriving at the assessable value. The proforma invoice did not say that the price quoted thereunder was for NIKKALITE brand Retro Reflective Sheet, Such a quotation could not be relied upon. They relied on the decision of the Tribunal in the case of CC Vs. Metro Trading Co. [2006(206) ELT 625] and in CC Vs. Sahara Enterprises [2006(206) ELT 548]. Relying on the decision of the Tribunal in the case of Maharshi Alloys Pvt. Ltd. Vs. CC [2003(151) ELT 200], it is submitted that for enhancing the value, there had to be evidence of contemporaneous import and that mere admission of the importer under duress will not be sufficient for rejecting the transaction value. The statements of Shri Velu Chandrasekar had been relied upon on selective basis. In respect of NIKKALITE brand Retro Reflective Sheet, the value stated in the statement was SGD 160 for 25 x 200 sheet. c. There was no evidence other than the statements of Shri Velu Chandrasekar for mis-declaration or under valuation in respect of imports made under the past Bill of Entry No.320364 dt. 20/5/2002, No.394234 dt. 12/12/2002 and No.416047 dt. 10/2/2003. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant under Section 112(a) of the Act was not liable to be paid when the Adjudicating Authority had failed to specify the exact clause within Section 112(a) of the Act under which penalty was sought to be levied. He relied upon the judgment of the Honrable Apex court in the case of Amrit Foods (supra). 5. During the hearing, the ld. Counsel for the appellants relied upon the following case laws. a. Munna Gift Centre Vs. CC, Chennai [2004(178) ELT 310 (Tri. Bang.)] In this case, the Tribunal held that enhancement of declared value based solely on the admission, later retracted, was not permissible. The Department had compared import of goods of different quality and quantity from a different country of origin for revising value. b. Selection Enterprises Vs. CC, Chennai [2005(183) ELT 273 (Tri. Bang.)] In this case, the Tribunal held that enhancement of value accepted by the appellant when a statement was recorded was not sustainable since the authorities had not followed the principles of natural justice. The appellant therein was not furnished a copy of the market enquiry made and relied on to determine the value. c. Parag Sheth Vs. CC, Ahmedabad [2005(188) ELT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat was declared as self-adhesive paper of sub-heading 4823.12 was chapter heading 3920.99 has not been disputed by Shri Velu chandrasekar and his wife Smt. Manjula Chandrasekar. These goods containing 61.2% of plastic and 38.8% paper were classified by the authorities under CTH 3920.99. These were found to be NIKKALITE brand Retro Reflective Sheet. 7.3. As regards valuation of NIKKALITE brand Retro Reflective Sheet the authorities relied on a quotation issued by the manufacturer M/s. Nippon Carbide Industries Co., Japan for shipment to Singapore. It appears from the order of the Original Authority that the proforma invoice was raised by the Japanese manufacturer on the Singapore dealer M/s. Golden Hind Enterprises at SGD 192 per roll (24x50 yards). The consignment was procured from M/s. Golden Hind Enterprises, Singapore. The re-determination of the value at SGD 192 has been challenged, inter alia, on the ground that value cannot be determined based on a proforma invoice. We find that there is merit in this submission. However, there is no denying the fact that the invoice relied upon had been raised by the manufacturer of the goods. The authorities noted that Shri Velu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessee, the goods in question had been examined by Customs and the declaration accepted for assessment. There is also no reliable evidence that the invoice covering this import was fabricated. Therefore, we vacate the finding of mis-declaration of description and value of goods covered by Bill of Entry No.320364. 7.5. As regards Bill of Entry No.394234, the authorities were able to recover another invoice showing a total value of 7.6. As regards Bill of Entry No.416047, the finding of under valuation is not substantiated with evidence. There is also no admission by Shri Velu chandrasekar to the effect that 144 nos. of hairdryers were undervalued to the extent of 7.7. As regards the finding of liability to confiscation of goods covered by Airway bill 058 4036 4973 under Section 111(f), the Commissioner(Appeals) recorded the following findings:- 13. The appellant had faxed a specimen copy of the invoice to Shri Anthony Johnson of Wega Technologies, Singapore from his unit VCS Technologies. The goods NIKKALITE brand Retro Reflective Sheets were mis-declared as self adhesive sheets in the manifest. Had the seizures not made and the investigations not started, thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 173Q which stood attracted in the show cause notice. We find that this judgment is not relevant in the instant case where penalty was imposed under Section 112(a) of the Customs Act and the offending transactions were elaborated in the show cause notice. 7.10. As regards the appeal filed by Shri Velu Chandrasekar, we are inclined to agree with the authorities that he masterminded evasion of legitimate duty by manipulating shipping documents etc. The dispute is remanded to the Original Authority for re-quantifying the duty liability as well as the penal liability of the assessee as well as Shri Velu Chandrasekar. 7.11. We have considered all the case laws cited by the assessee in defence of the values declared in the Bs/E and find that all of them are distinguishable on facts. In our findings on value we are fortified by the following observations of the Honrable High Court of Himachal Pradesh allowing a reference petition filed by the Revenue against an order of the Tribunal in the case is relevant. In the above decision in the case of CCE Vs. International Cylinders Pvt. Ltd. dt. 15/9/2008 vide Excise Ref. No.3 of 2000, their lordships, inter alia, made the following ob ..... X X X X Extracts X X X X X X X X Extracts X X X X
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