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TMI Blog2007 (11) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... cking, were selling the same film at a higher price in the local market. Investigations were conducted abroad and statements of various persons were recorded. The authorities also seized the goods under panchanama of 26.06.1997, which were later released on submission of bond with bank guarantee. On conclusion of investigations, a show cause notice was issued proposing as under: "The show cause notice dated 30.05.2001 was issued asking that as to why- (a) the declared value should not be rejected and the same enhanced to US$ 1.80 /sq.m for M/s. Autotype product and US$1.50/Sq.m for M/s. H & H Exports; (b) Differential duty of Rs. 1,21,64,904/- should not be recovered from the following noticees under the proviso to Section 28(1) of the Customs Act. Sr.No. Noticees CIF Value Differential Duty 1 M/s. Photokina 41,57,884/- 73,68,417/- 2 M/s. Deal Fine Exim 19,70,324/- 24,37,492/- 3 M/s. Gold Coin Impex 16,78,088/- 23,58,995/- &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. Indrejeet Singh Baiva. The said case laws are distinguishable on facts as well as in law. The evidences of the manufacturer price revealed by the investigation conducted by Indian High Commission in London and the price list of the manufacturers are in conflict with the invoices raised by the manufacturer in this case. Therefore, the said case laws have no application in the subject case. In regard to judgement cited in case of M/s. Ajay Exports and M/s. Amruta Hotesl (P) Ltd., I find that an order under Section 47 of the Customs act, 1962 can be challenged or set aside if fraud or deliberate suppressions is involved as held by the Apex Court in the case of M/s. Jai Hind Shudh Vanaspati - 1996 (86) ELT 460 (SC). The reliance placed on the judgement of M/s. Dabo India Ltd. is not applicable for the subject case as the duty demanded in this case is legally due to the government and the payments made before the show cause notice are voluntary in nature. In the light of the above discussions and findings, I, (a) order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said firms fail to pay the amount forthwith". These appeals are filed against the above order. 4. The learned advocate appearing for the appellants submits that the order is not sustainable on various grounds. It was submitted that the impugned order is erroneous on the face of fact that the adjudicating authority has not considered all the submissions made by the appellant before him. It was submitted that the order of confiscation of the seized goods is ex-facie wrong as there was no allegation as to any kind of mis-declaration. It was submitted that the goods, which were confiscated, were seized and again the very same goods were held to be liable for confiscation on the ground that the value has been mis-declared. It was submitted that the enhancement of value by the adjudicating authority is not correct as the reliance placed on the investigation made abroad with the help of High commission of India does not prove any under invoicing, on the contrary the said report clearly indicate that the supplier Autotype Internat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,Baroda. [2001 (130) ELT 642 (Tri.Del.)] (iv) Dabur India Ltd. Vs. State of Uttar Pradesh [1990 (49) E.L.T. 3 (S.C.)] (v) Agarwal Distributors Pvt. Ltd. Vs. Commissioner of Cus. New Delhi [2000(116) E.L.T. 613 (Tribunal)] (vi) Shree Balaji Trade Overseas Vs. Commissioner of Cus.Delhi(Gen.)] [2003 (162) E.L.T. 659 (Tri.Del.)] (vii) Trichy Steel Rolling Mills Ltd. Vs. Collector of C.Excise, Trichy [1997 (94) E.L.T. 158 (Tribunal)] (viii) Cadila Laboratories Ltd. Vs. Collector of Customs, Bombay. [1997 (94) E.L.T. 160 (Tribunal)] (ix) Maruti Udyog Limited Vs. Commissioner of Customs, Kandla [2001 (132) E.L.T. 340 (Tri.Mumbai)] (x) Commr. Of Cus. Bangalore Vs. Motorola India Pvt. Ltd. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 6.10.1997 starts with confirmation of earlier statements. He submits that there are no findings as to the fact that there was country specific valuation for the goods by the supplier. 7. Considered the submissions made at length by both sides and perused the records. It is seen from records that the show cause notice as issued to the appellant is for the period August 1993 to July 1996. All the bills of entries for the period were assessed finally. The main charge against the appellant is that they have under valued the goods imported by them by mis-declaring the unit of measurement. It seen from records that appellant was importing the goods on the unit measurement of rolls. It is also undisputed that supplier M/s Autotype International is supplying the same goods in the international market not in jumbo rolls but in smaller rolls. The question as to why M/s Autotype International was supplying to the appellant only in roll form is answered by the confessional statement of the proprietor in his statement dated 1st August 1996 and statements dated 21st and 27th June 1997. Statement dated 1st August 1996 was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r are to be accepted as admission. This our view is fortified by the judgment of the Hon,ble Supreme Court in the case of Surjeet Singh Chhabra Vs Union of India as reported at 1997 (89) E.L.T. 646 (S.C.).The so-called retraction of the statement-dated 6.10.1997 was made as an after thought. It is to be noted that the proprietor did not feel it necessary to retract the statements dated 1st and 5th August 1996, 21st June 1997 and 27th June 1997 earlier. It is unexplained why it dawned on him to only retract the statement- dated 6.10.1997. Be that as it may, it is seen that retraction of statement dated 6.10.1997 would in itself will not contradict the facts as the statement of the representative of the supplier Autotype International also confirms the special arrangement entered in to by the appellant firm and supplier for the supplies made specially to current appellant for supply of consignment in jumbo rolls. As such we find that the allegation of under valuation by adopting such novel way is established. As such the duty liability of the bills of entry No. 3367 dated 30.05.96,1580 dt.12-6-1996,3368,dt.30-5-96,2377,dt.8-7-96,2378,dt8-7-96 ,2379,dt.8-7-96 is correct and does not r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation and an amount of Rs. 14,30,250/- recovered during the raid, totaling to Rs. 64,30,250/- having ordered to be adjusted against the duty liability for the period August 1993 to July 1996 is correct or otherwise. We find from the order-in-original that the adjudicating authority has adjusted the said amount as duty otherwise due to the Government but for demand being time barred. We are unable to agree to this proposition of law on the fact of the case that the adjudicating authority has come to the conclusion that the duty demand for the period August 1993 to July 1996 is hopelessly time barred. If the duty demand is totally time barred it cannot be enforced in any manner. It is also seen from records that the said findings of adjudicating authority has attained finality in as much the revenue is not in appeal against the said findings. It is also surprising to note that the first statement of the proprietor of the appellant was recorded in August 1996, and it took the authorities almost five years to issue a show cause notice. There seems to be no plausible reason, for such belated issuance of show cause notice as it is seen that revenue has not filed any appeal agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n chargeable with the duty calling upon him to show cause why he should not pay the amount. After service of the notice under sub-section 92) he must consider the representation made by the person to whom notice is issued and then determine the amount and call upon the person to pay the amount. Action under section 28 could not have been taken, and the Asst. Collector was clearly aware of it, for in his letter dated 25th April 1964, he had mentioned that a demand under Section 28 (i) is time-barred, but a payment if made voluntarily, would be accepted. As proceedings could not be taken under Section 28 no notice required under that section was given or the procedure prescribed under Sections 28(1) and (2) followed. Within 30 years from the date on which the duty became leviable. This contention cannot be accepted from the Act itself, when providing for the levy of the duty, also specifies the manner in which it can be collected. The Customs Act is a code which defines the procedure and will have to be followed for collecting the duty which had not been levied and the procedure prescribed under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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