TMI Blog2013 (10) TMI 856X X X X Extracts X X X X X X X X Extracts X X X X ..... cessing cost or profit margin. It does not take into account the actual contents of zinc in the impugned goods and the form in which such zinc is present. It is also seen that the statement recorded under Section 108 accepts undervaluation of a few consignments only and not all consignments - Following decision of Sonia Overseas Pvt. Ltd. Vs Commissioner of Customs, Amritsar [2011 (3) TMI 1268 - CESTAT, NEW DELHI] - Decided in favour of assessee. - C /267 & 270/2010 - Final Order Nos. A/629-632/2013-WZB/C-I(CSTB) - Dated:- 16-4-2013 - Ashok Jindal And S K Gaule, JJ. For the Appellants : Shri S Jaikumar, Adv. for 1-2, Shri J S Sanghvi, Consultant for 3., Shri Anil Balani, Adv. for 4 For the Respondent : Shri Amand Shah, Addl. Comm (AR) PER : Ashok Jindal The appellants namely M/s. Agarvanshi Aluminium Ltd. (importer) and Shri Bharat Bhushan Agarwal (director of the importer) and Ehsan A. Gadawala and Shri Purshottam Parolia (indenter) have challenged the Order-in-Original no. 164/2009-CC(I) JNCH passed by the Commissioner of customs (Import) dated 15.12.2009. 2. The brief facts of the case are that the importer imported aluminium scrap during the period July 2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e mentions that there were 5 CPUs. Therefore, the contents of panchnama were also doubtful. Accordingly, printouts cannot be relied upon and demand is not sustainable. 4. He further submitted that for the demand based on contemporaneous import, the value of imports which were found in the computer printouts and value of imports declared in the bills of entry are much higher than the value of the contemporaneous imports. As per provision of Customs Valuation Rules, lowest value has to be taken for arriving at the transaction value and if that is taken there is no undervaluation. As far as merits are concerned, it is further submitted that based on the publication of minerals and metal review, which is a publication and report on imports of aluminium scrap at various ports in India based on the import data provided by the department, a comparative data has been prepared in respect of the imports of the appellant. The worksheet clearly demonstrates that the value declared by the appellant is much more than the list of the value of contemporaneous imports. Therefore, the demand on the basis of contemporaneous imports is not sustainable. 5. With regard to the demand of differential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir submissions in detail. 11. In this case demands have been confirmed against the importer on three counts a) on the basis of computer printout and statement of the indenter and the partner of the importer b) On the basis of contemporaneous imports c) On the basis of LME price We have seen the panchnama. In the list of the documents seized, initially the list of document typed was till sr.no.99, thereafter five items were added in hand written and sr.no.103 its mentioned that four computer units without any mouse, key board, monitor and other accessories i.e. peripherals is mentioned. In the panchnama, the description of the item i.e. make, model, serial no. of the CPU were not mentioned. Moreover, they are hand written and other 99 items are typed one. Further we find that as per panchnama 4 CPUs were seized but as per the report of Directorate of Forensic Science, computers are found to be five in numbers and printouts are taken from these five CPUs which has been relied in the impugned order. Therefore veracity of the panchnama is doubtful. Further, we find that for computer printouts can be relied as per the provisions of Section 138C of the Customs Act, 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether - (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. (4) In any proceedings under this Act and the rules made thereunder where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, - (a) identifying the document containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g authority for recording a finding of clandestine manufacture and clearance of excisable goods, it was found by the Tribunal that printouts were neither authenticated nor recovered under Mahazar. It was also found that the assessee in that case had disowned the printout and was not even confronted. The Tribunal rejected the printouts and the revenue's finding of clandestine manufacture and clearance. Thereafter it was found that there is strong parallel between the instant case and the case cited. Nothing contained in the printout generated by the PC can be admitted as evidence for non- fulfilment of the statutory condition." In this case also, we find that the parallel situation as to the decision of Premium Instruments Controls (supra). 13. Therefore, the printout generated from the PC seized cannot be admitted into evidence for non-fulfillment of statutory condition of Section 138C of the Customs Act, 1962. 14. Further, we find that the statement recorded during the course of investigation from Shri Purshottam Parolia was retracted immediately but retraction was not shown to Shri Bharat Bhushan Agarwal, the partner of the importer and Shri Bharat Bhushan Agarwal admits th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve chart in respect of the imports that has not been considered by the adjudicating authority. In fact the adjudicating authority has to consider the data of the contemporaneous imports of aluminium scrap on various ports as per the worksheet prepared by the appellant which has not been done in this case. Therefore, demand on account of contemporaneous imports is not sustainable. 18. Coming to the valuation based on the LME price is prime metal and admittedly in this case the appellant has imported the scrap and a discount has been provided to the appellant. For scrap the quantity of the scrap is imported that cannot be compared with the prime metal. As prime metal is of high quality, and if the scrap is processed to obtain the prime quality, there is some process cost but the discount given on the prime metal is without any basis and is only on presumption and assumption. Demand cannot be made on that. The similar issue was dealt with in Sonia Overseas Pvt. Ltd. Vs Commissioner of Customs, Amritsar 2011 (270) E.L.T 259 (Tri.-Del), wherein, while considering the valuation adopted for arriving at the value of Zinc Ash/skimming's, the Tribunal have observed certain facts which are ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
