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2016 (3) TMI 797 - CESTAT NEW DELHI

2016 (3) TMI 797 - CESTAT NEW DELHI - 2016 (344) E.L.T. 388 (Tri. - Del.) - Undervaluation of goods - Appellants eschewed cross examination of persons - Demand of Customs duty and imposition of penalty - Held that:- it is not in doubt that as statements of various persons whose cross examination was sought by the appellants were relied upon by the Adjudicating Authority against the appellants not permitting their cross examination obviously caused prejudice to the appellants. The minimum consequ .....

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e to say that if the impugned goods were not of prime quality, their value cannot be compared with the value of goods of prime quality. For valuation of non prime quality goods supplied on 'as is where is basis' without warranty, their physical examination is necessary to ascertain their value and there is nothing on record to establish that the impugned goods cleared were of prime quality. Therefore, there is no undervaluation of goods and the impugned order do not sustain. - Decided in favour .....

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and other electronic items. Revenue on the basis of some intelligence launched an investigation and searched the premises of the appellant and recorded the statement of various persons. Mr. Johny Singh was the authorized representative of appellants No. 1 & 2. The show cause notice was issued on conclusion of investigation alleging under valuation of imported video cassettes. The case was adjudicated vide order in original dated 12/2005 dated 01.03.2005. On appeal filed by the appellant CES .....

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the allegations were sustained inter alia on the basis of the statements of various persons like M/s. Poonam Cargo Services, CHA, Shri Sanjay Dua, Manager of M/s. Anil Verma, CHA, Shri Rakesh Saini, Executive Logistics, M/s. Sony India (P) Ltd., Nobutomo Fujimori, General Manager, Recording Group Media of Sony India, Dalip, etc. Their cross examination was sought but was denied by the adjudicating authority who falsely recorded that during personal hearing, cross examination was eschewed. The a .....

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the consent of the appellants. Atleast two consignments were also checked by the preventive unit which found nothing amiss. (iv) The prices were negotiated prices for recycled tapes as the evident from several emails exchanged between the supplier and the appellants and the goods were purchased on as is where is basis without any warranty. The supplier M/s. Sony Gulf FZE supplied goods on payment which was directly made to them by the appellants and therefore, the statements of the officials of .....

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er saying that the statement of various persons clearly establish under-valuation. 3. We have considered the contentions of both sides. 4. We find that CESTAT vide the interim order no. 1041-1043/2014 dated 31.12.2014 passed the following order: 1. In reply to the show cause notice dated 19.04.2002 alleging undervaluation of the imported professional video cassettes, the appellant categorically and in detail vide para 5 and reiterated in interim prayer B, of its reply to the show cause notice de .....

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B. Pandey and the son of the appellant Shri Johny Singh declined to cross-examine any such person as it would prolong the proceedings and requested that the matter be decided on merits and on the basis of available records. The appellant contests this finding recorded by the adjudicating authority and states that cross-examination was never given up during adjudication proceeding. 3. In the circumstances, the respondent shall file an affidavit furnishing the record of the adjudication hearin, pa .....

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e, Revenue is not in a position to confirm or deny as to whether the appellants eschewed cross examination of the persons whose statement were relied upon during adjudication. The issue regarding cross examination have been discussed in detail in the case of Dharampal Satyapal Vs. CCE 2015 (8) SCC 519 in which Hon ble Supreme Court essentially held that cross examination of a person is required to be granted if the absence of cross examination of that person will cause prejudice to the appellant .....

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