TMI Blog2015 (5) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... lue was more than what was declared. Invoice value has been under-declared and payments are in black, the profit earned within India if properly accounted increases and therefore the financial position indicated can not be totally disbelieved. In any case when such malafide actions are undertaken, accounts are also not properly maintained and therefore the submissions with regard to financial difficulty have to be taken with a spoon of salt. Moreover, the income tax returns do not show the assets but only the income liable to tax. - Partial stay granted. - C/Stay/25024/2013, C/25028/2013-DB - - - Dated:- 22-9-2014 - B S V Murthy, Member (T) And S K Mohanty, Member (J),JJ. For the Appellant : Mr Rukmani Menon For the Respondent : None ORDER Per: B S V Murthy: Differential customs duty of ₹ 1,96,57,499/- has been demanded from the appellant with interest on the ground that appellant had undervalued betel nuts imported by them under 14 Bills of Entry during the period 2006-07. Penalty of more than ₹ 1,72,00,000/- has also been imposed. The appellant is engaged in the business of import and export and during the consideration of Bill of Entry fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all employees were making entries and from which it could not be made out as to whether all the entries related to betel nuts at all, the case has been made out. She also submits that there is no evidence of payment of extra amounts for imports made. Even though the exporter was available in Mangalore during the relevant period, investigating officers did not even interrogate her and did not elicit information as to whether the appellant paid additional amounts to the exporter at all. She also submits that there is no evidence to show that the person named Mr. Sahid had met the appellants or received the payment of extra amounts in respect of transactions. She also submits that whole case is based on the information in the diary, computer entries etc. and there is no linkage between the Bills of Entry and the diary and the computer entries. She submits that owner had not admitted transfer of extra amount abroad. She also submits that the contemporaneous value of betel nuts should have been considered. The impugned order suffers form illegality on this core. 5. We have considered the submissions made by the learned counsel. We find that Commissioner has dealt with the evidence a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icee is only USD 8327.5. In this case also the said document clearly evidences the undervaluation resorted by the noticee and the parallel payment made by the noticee. 59. Entries at page no 71 of the diary recovered from the noticee's premises shows the value of containers 5,6,7 as USD 46,454/-, 8,9,10 as USD 540501/-, 11,12,13 as USD 56095/- and shows the total as USD 156599. The entries at page 70 of the said diary mention various amounts in USD on different dates during the period 27.04.2006 to 25.05.2006 totaling to USD 152773.25. Names of different persons and bank are also seen made against these entries. Six Bills of Entry viz. 176606/12.04.06, 176607/12.04.06, 177380/26.04.06, 177653/03.05.06, 178528/18.05.06 and 178567/18.05.06 for clearance of containers 5 to 13 imported by the noticee are filed during the said period. The total declared invoice value of the said six Bills of Entry is USD 36180.20 (as given at Sl. Nos. 3 and 4 of Annexure C 2 and Sl. Nos. 1 to 4 of Annexure C1) as against USD 156599/- mentioned at page 71 of the diary. 60. The fax message in the letter head of the supplier, M/s CV. Mulia Karya dated 13.06.2006, recovered during the search of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iption and value by the noticee in respect of the of the goods imported vide Bills of Entry nos. 169696/24.11.2005, 175491/16.03.06, 176606/12.04.06, 176607/12.04.06, 177380/26.04.06, 177653/03.05.06, 178528/8.05.06, 1785671/18.05.06, 179694/08.06.2006 and 193183/25.01.07. The scrutiny of the documents recovered and the bank account statements show that noticee had cleverly made payment of the declared invoice value through the banking channels and the difference between the actual value and declared value was sent through his business partners or by way of transfers from third countries. I find that noticee has sought to counter the evidence gathered during investigation about the undervaluation and mis-declaration of correct nature of goods imported with the following arguments; The documents gathered are not admissible as evidence as they do not bear the authentication as required under Section 138 c (2) of the customs Act, 1962 and that the certificate as required under the said section was not available. The entries made in diary are not authenticated, there is nothing to link noticee to persons mentioned in the diary entries and the entries have nothing to do with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, invoice value has been under-declared and payments are in black, the profit earned within India if properly accounted increases and therefore the financial position indicated can not be totally disbelieved. In any case when such malafide actions are undertaken, accounts are also not properly maintained and therefore the submissions with regard to financial difficulty have to be taken with a spoon of salt. Moreover, the income tax returns do not show the assets but only the income liable to tax. Nevertheless we take into consideration the financial difficulties also and therefore even though the appellants should have been required to deposit the entire amount of customs duty with interest and a portion of the penalty, we consider that if the appellant deposits an amount of ₹ 50,00,000/- (rupees fifty lakhs only) within twelve weeks and reports compliance on 15.01.2015, that would be sufficient for hearing the appeal. Accordingly, if the amount is deposited as mentioned above and compliance reported, the requirement of pre-deposit of balance dues is waived and stay against recovery is granted during the pendency of appeal. (Operative portion of the order has been prono ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
