TMI Blog2006 (1) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... alleging that appellant had mis-declared the description/weight/value of the goods under import and there was large evasion of duty. The appellant resisted the allegations; but the charges were upheld in the order passed by the Commissioner of Customs dated 19-9-2003 and duty demand of about Rs. 2.7 crores was confirmed along with penalties on the appellants. When the matter came in appeal before this Tribunal, it confirmed a part of the duty demand and penalty. Both revenue and importers filed appeal against that order before the Hon'ble Supreme Court and Supreme Court was pleased under an order dated 25th February 2003 to set aside the order of the Tribunal and remand the case to the Commissioner of Customs for a fresh adjudication. Pursuant to that remand order, the Commissioner passed the adjudication order dated 19-9-2003. In that order also, almost the same duty demand was confirmed. Penalties were also imposed. These appeals are directed against that order. 3.Contention of the appellant importer is that there was no mis-declarations and that correct amount of duty had been paid on the consignments already taken delivery of and that the pending consignments merit assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the seized goods; that they have made advance payment of about US $ 10,000 already in part for the entire advance amount of US $ 56,000, that this amount had been paid through broker Shri Hamid by his company under this instruction and that balance of US $ 46,000 (approx.) was to be paid by them but they have not been able to do so because of the paucity of fund with them Shri R.S. Jain, further clarified that this sort of record of payment was not kept in regular Cash Book but at times of slips or exercise books, (page -17 of statement dated. 20-9-88 page - 1 2 of seized documents relied in page - 201 of the Show Cause Notice). Such statement has been corroborated by withdrawal of cash amount of Rs. 8.95 lakhs on 24-6-88 and Rs. 4 lakhs of 29-6-88 by Shri R. S. Jain and Shri A.K. Jain respectively. 55.As regards 7 consignments, which are under detention, I find that chemical test has been conducted and weighment has been done. The ascertained CIF value for the purpose of assessment in respect of six consignments of copper scrap consigned to M/s. Cosmos Steel Works out to be Rs. 21,22,838.35 against a declared value of Rs. 17,89,066.34, taking into consideration, the enhan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rily fixed measure for customs valuation is sales price in a commercial transaction (transaction value). In the present case, there was no evidence on record to show that transactions were not commercial or that any other consideration had influenced the prices, or that the transaction price is a particularly low price. The copper scrap imported by the appellant was 'ungraded' kind, that is to say, it did not conform to any particular standard in regard to percentage at of metal. Imports of copper scrap at much lower (33 cents CIF) price would show that the appellant was not purchasing at any concessional price. Thus, the finding that there was undervaluation and misdeclaration of value is not supported either by prices observed in other transactions or any specific evidence. That the assessment of one of the consignments at 58 cents per pound has become final also shows that Commissioner's finding that 90 cents per pound is the commercial value of the goods pending clearance is untenable. Commissioner has noted that the assessment at 58 cents has become final and he is not disturbing that assessment. He has however, not cared to explain as to how that price would not be appropriat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty in regard to six consignments pending clearance are set aside and Customs authorities are directed to release the consignments after assessing them to duty at the declared values. 10.Now, we may come to the 173 consignments which had been cleared after payment of duty. As already noted, these consignments were cleared over a period of 5 years. These imports were from 11 overseas suppliers located in USA, UK, Switzerland and Singapore. The import prices vary from time to time and customer to customer. All the same, the order of the Commissioner is for assessment of the consignments at a uniform price without recognizing differences in supplier, country of supply and time of import. We may read that order : "I find that the value of the goods declared as Brass Dross and found to be Brass scrap should be fixed at US $ 0.60 per lb., for the past consignments and at US $ 0.63 per lb. for the consignments under seizure. Similarly, I find that the value of the Copper Brass scrap should be fixed at US $ 1340 per M/T for the consignments imported during the year 1984-88 (prior to the consignments under seizure) and at the rate of US $ 0.90 per lb. for the consignments under seizu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsence of original assessment documents and files it is not possible to know what were the facts disclosed/known at the time of those assessments and whether any of those facts or materials were false or incorrect. It is being pointed out that in the absence of the original documents and files of assessments, the allegations of the revenue that there was misdeclaration, and misdeclaration led to short-levy, are incapable of being construed and understood in a legal and factual context. Learned counsel has emphasized that this is particularly important in the present case inasmuch as original assessments were themselves after much dispute and investigation. It is being pointed out that at the time of the imports, the revenue had refused to assess the consignments in terms of declarations and import invoices. Thereupon, provisional assessments were resorted to, either under the order of the Hon'ble High Court of Calcutta, or otherwise. The consignments were examined in great detail, tests of samples carried out, and thereafter only assessments were finalised. The learned counsel also points out that in the examination and assessment process, Special Investigation Branch of the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is applicable to all cases and the Commissioner was justified in applying higher value to all imports during the period in dispute. 15.Another very important point made by the appellant is that even if the appellant's transaction values were to be rejected, the reasonable approach would have been to go by the prices noted in comparable transaction. The appellant has produced data of comparable imports during the relevant period and emphasised that the commercial nature of the appellant's prices would be fully borne out by the prices noticed in other transactions. Learned counsel for the appellant would emphasize that the prices of other imports not only would show the untenability of the allegation of undervaluation against the appellant, but also would show that if the assessments are reopened and reassessed at the lowest comparable values (as dictated by the Valuation Rules) it would be seen that the appellant was paying duty at much higher prices than was required and there was only excess payment. Revenue has not disputed the price data relating to comparable imports. It is only refusing to consider that data on the ground that when specific evidence showing undervaluation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecific evidence is only in regard to 35 consignments. 21 of those are from M/s. Pacific Trading Corporation, USA, 6 from Erman Howell Division, U.S.A. and 6 from BICC, Middle East Ltd., U.A.E. and 2 from Dietiker Ag Fur Rohmetalle, Switzerland. Even in these cases, most of the original assessment documents and files are not available. Revenue has relied on the correspondence (seized from Kalol Basu) to show that the nature of the consignments as well as value was being misdeclared. It is also being contended that in the case of those 35 consignments, the revenue has recovered bank paid invoices from the house of Shri Kalal Basu and assessments were found to be at lower price than the bank invoices. It is the revenue's case that price of the goods is the price payable or paid in terms of Customs Valuation Rules and the price paid being available in the present case, the assessment should be on that basis. 18.It is being contended by the appellant that the amount originally paid was not payable as it was found that goods did not conform to agreed specifications and since the price was specification based (90% metal content), the foreign supplier had issued revised invoice and those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject dated 31-10-1995 from McCurdy Stone, USA who was the appellant's solicitor, reveals that it could not pursue recovery any longer since the appellant's supplier M/s. Pacific Trading Corpn. had ceased to exist. The same is the position in regard to 6 consignments of brass scrap received from Erman Howell. The consignments were of extremely poor quality and the supplier reduced the price to 49.6 cents from 57.5 - 59 and issued revised invoices. It is the learned counsel's explanation that the assessments in all these cases were provisional and Customs Officers finalized the assessments after satisfying themselves about the quality of the goods, comparable price and other relevant aspects. Thus, it is the contention of the ld. counsel that there was no short levy or misdeclaration in these cases and the evidence obtained during investigation also do not prove the contrary. 20.With regard to the six consignments of copper scrap from BICC, Sharjah, revenue's case is that specific evidence exists in the form of working sheets in the handwriting of Shri Arun Jain and these working sheets show the actual price, payments due, weights, grade etc. It is also being pointed out that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessments should be on that basis. 24.The appellant has raised many objections against relying upon the work sheets. They have pointed out that Mr. Aran Jain has not been examined on the work sheet and his handwriting has not been proved and that Shri Arun Jain owned business in USA and that there are discrepancies between delivery note and sale documents. 25.These objections do not detract from the authenticity of the particulars about goods, price etc. noted in the working sheets. Despite the minor variations, what is clear is that the container numbers mentioned in the working sheets tally with the container numbers under which the appellants received the goods. Thus, the consignments mentioned in Shri Arjun Jain's notes tally with the consignments received by the appellants. Since the containers in question were coming to Calcutta, they cannot have any relation to Shri Arun Jain's business in USA. The objections raised by the appellant cannot find acceptance in the light of the satisfactory correlation between the private record and the consignment imported. It is well settled that in a civil tax dispute, the evidence does not have to exactly and precisely establish ..... X X X X Extracts X X X X X X X X Extracts X X X X
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