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2015 (9) TMI 1259 - CESTAT AHMEDABAD

2015 (9) TMI 1259 - CESTAT AHMEDABAD - 2016 (331) E.L.T. 85 (Tri. - Ahmd.) - Undervaluation of import of electronic components - department has built up its case on the basis of export declarations filed by the suppliers of the goods - Admissibility of evidence - Penalty u/s 114A r.w. 112 - Held that:- Export Declarations are obtained from the Customs and Excise Department, Hong Kong under the cover of their letter on letter head and signature, through Commission for India (High Commission/Embas .....

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s of this particular case, we find that these Export Declarations are admissible as evidence

A perusal of the show cause notice dated 06.5.1998 reveals that appellants have not produced any evidence to substantiate that the invoice value declared by them are correct by way of showing value of contemporaneous imports etc. On the other hand, we find that the Department has brought in evidences such as the export declarations along with the declarations certifying its accuracy, obtained .....

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dated 26.09.2000 in the first round of litigation, had categorically held that the department had discharged the burden of proof by way of giving declaration received from the Hong Kong, Customs. No evidence whatsoever in support of the price declared by the suppliers has been brought on record by the appellants at the time of adjudication, or de-novo adjudication or till now. - no reason to interfere with the impugned order-in-original - Decided against assessee. - Appeal No. C/153,154/2007, C .....

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ee appeals are taken up together for disposal. 2. The reported facts of the case are that, on an intelligence that M/s. Martwin Electronics, situated at 366, 2nd Floor, Ahmed Mansion, Lamington Road, Mumbai indulged in undervaluation of electronic components imported from Hong Kong, the officers of DRI, Mumbai searched the common office-cum-residence premises of M/s. Martwin Electronics and M/s. Rachna Electronics (appellants herein) on 07.7.1995. Investigations were also conducted at Hong Kong .....

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hat the imports were made by him through Air Cargo Complex, Ahmedabad and Custom House, Mumbai. 3. The subject matter involved in the present appeals revolve around the import of ICs, Diodes, Transistors, Transducers, Thyristrers, Triac, Diac, Capacitors etc. at Ahmedabad Air Cargo complex during the period from November 1993 to July 1994, covered by 16 Bills of Entry as detailed in the Annexure A to the show cause notice dated 06.11.1998. It is alleged in the show cause notice that the appellan .....

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was adjudicated by the Commissioner vide OIO No. 10/Commissioner/2000 dated 26.09.2000 wherein, he confirmed the demand of duty of ₹ 71,15,105/-along with interest and held the goods liable to confiscation. He also imposed penalty of equivalent amount of duty of ₹ 71,15,105/-, under Section 114A read with 112 of the Customs Act, 1962. A personal penalty of ₹ 25,00,000/- was also imposed on Shri Chandrakant Zangda, Proprietor/ Partner of the appellant Companies, under Section 1 .....

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strained to set-aside the impugned order on this short ground itself and remand the matter to the Commissioner for fresh adjudication. 5. In de-novo proceedings, the Commissioner vide the impugned order confirmed the demand of duty on the appellants along with interest. The impugned goods were held liable for confiscation. Equivalent amount of penalty was also imposed on the appellant companies and penalty of ₹ 25 Lakhs was imposed on Shri Chandrakant Zangda, under Section 112(a) and (b) o .....

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and that there are many discrepancies between the export declarations and in the invoices etc. He also relied upon case laws of the Hon ble Apex Court and the Tribunal. On the other hand, the learned Authorised Representative for the Revenue strongly rebutted the contentions of the learned Consultant and submits that export declarations were admissible under the provisions of Section 139(ii) of the Customs Act, 1962. He further submits that the export declarations were obtained through official .....

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ort declarations contain numerous data and almost the entire particulars matches with the invoices, except in a few cases wherein there are small discrepancies which have been examined in detail by the adjudicating authority. 7. We find that adjudicating authority has extensively dealt with the appellant s contention of admissibility of the export declarations and the question of discrepancies raised by the appellants. For better appreciation, the same is reproduced below:- 36 The importer has a .....

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xport declarations, the Hong Kong Customs authorities vide their letter dated 19.04.96, have acknowledged that they had forwarded these declarations, which in a way, attests to the veracity of the declarations. Some declarations do show India as Country of origin but at the same time these declarations also show India as the Country of destination too. This could have been shown by a mistake. However, since all other details in the export declaration tally with the details in the Invoice, this s .....

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he date of declaration are very much relevant to the actual date of dispatch of export of impugned goods from Hong Kong. 37 Similarly, I have also examined other discrepancies pointed out by the Importer and I observe that they are not very substantive and are of very technical nature. For example in one case it has been pointed out with reference to the Invoice no. BIL 3303440 dated 10.01.94 that the quantity mentioned in Invoice is 5,00,000 pcs. Whereas in Export declaration it is 2,50,000 pcs .....

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been pointed out that export declaration shows Rachana Electronics as consignee while Invoice shows Martwin Electronics. They have also submitted that export declaration is not signed by the authorized person However, on perusal of the relevant export declaration it is seen that this is signed. As regards change in the name of consignee, it is observed that postal address of both the firms is same i.e. 366, Ahmed Mansion, Lamington Road, Mumbai-400007 and that Shri C.K. Zangda was looking after .....

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her noticed that the Importer/noticee, on their part, have not come pu with any evidence to show that the value declared by them was indeed the correct transaction value of the goods imported. In this regard, it will be pertinent to point out that Shri C.K. Zangda, the proprietor of the Importer, in his statement dated 04.12.1995, had categorically admitted that no purchase order had been given to them in writing and that he had placed order(s) on phone only; that M/s Batshita international Ltd. .....

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rted, there was no documents relating to enquiry, offer presentation, acceptance etc. maintained by the Importer. 8. It is observed that the export declaration contains data including Exporter name, Consignee name, Departure date, Transport mode, Vessel/ Aircraft name, Port of discharge, Airway Bill No., Destination country, Destination country code, Marks and Nos., Container No., No. and kind of packages, description of goods, Country of origin, Country code, Quantity, Unit of quantity, FOB Val .....

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der any other law, or (ii) has been received from any place outside India in the course of investigation of any offence alleged to have been committed by any person under this Act, and such document is tendered by the prosecution in evidence against him or against him and any other person who is tried jointly with him, the court shall (a) presume, unless the contrary is proved, that the signature and every other part of such document which purports to be in the handwriting of any particular pers .....

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ume, unless the contrary is proved, the truth of the contents of such document]. It is observed that the Export Declarations are obtained from the Customs and Excise Department, Hong Kong under the cover of their letter on letter head and signature, through Commission for India (High Commission/Embassy) in Hong Kong. It is also stated by Hong Kong Customs that they have no objection for the said 25 Export declarations to be used as evidence in judicial proceedings in India. It is also seen that .....

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of Collector of Customs vs. East Punjab Traders 1997 (89) ELT (SC), we find that the facts are different from the case in hand. In that case, the Hon ble Supreme Court noted that the documents were photocopies and did not bear the signatures of either exporter or the Custom officer. In fact, they did not have any signature whatsoever. Therefore, the authenticity of these documents is suspected and it is not possible to presume that the originals are duly signed. The Hon ble Supreme Court also no .....

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ere that the Xerox copies did not bear seal and signatures of the Customs officials in Hong Kong; that the authenticity of declaration was doubtful and the declarations were not correct reproduction of the original and that the said documents was not to be used in any legal proceedings. Further, in the said case, there were instances that other importers had imported identical goods at identical rates from the same supplier (namely M/s. Pearl Industrial Company, Hong Kong) during the aforesaid p .....

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