TMI Blog2017 (10) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... Reliance on these documents without supplying the same to the appellant has obviously resulted in failure to follow the principles of natural justice on the part of the Commissioner. If this non supply of documents has resulted in an apparent error in the order of the Tribunal dated 03/01/2017 or the order of the Commissioner? - Held that: - The Commissioner comes to a conclusion that the quantity mentioned in the invoices of K Line corresponds to the quantity mentioned in the invoices produced by the appellant relying on these documents. The value is thereafter arrived at using the quantity mentioned in the invoices produced by the appellant and the value mentioned in the invoices obtained from K Line. The charge of undervaluation itself is proved relying on these documents which were not supplied to the appellants. This issue has not been dealt in the order of Tribunal dated 3.1.17. Failure to deal with the issue of cross examination of Shri K Miwa - Held that: - It is seen that the appellants have raised this issue in their appeal before Tribunal as well. The order of Tribunal does not deal with this issue specifically. It is seen that the Commissioner has denied the reque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said document. He further pointed out that the examination report on bill of entry No.462861 dated 25/07/2002 was also not provided to them and therefore, this has resulted in violation of principles of natural justice. He pointed out that the Tribunal has failed to consider this defence in this regard and consequently an error was crept in the order dated 03/01/2017. 2.2 Ld. Counsel for the applicant further pointed out that in their appeal before the Tribunal they had specifically raised the issue regarding denial of cross examination of Shri K. Miwa, on whose e-mails. Ld. Commissioner has relied upon to hold that the documents submitted by the appellants were not genuine. He pointed out that in their appeal memorandum they had specifically raised the issue regarding cross examination of the important witnesses. He pointed out that the Tribunal order dated 03/01/2017 does not specifically deals with his issue and therefore an error apparent is crept in the said order. 2.3 He further pointed out that in point No. P of their ground of appeal they had specifically argued that though show-cause notice proposed the value of ₹ 99.23 per piece in respect of 2105 calibr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 3.1.17. 4.1 There is no dispute that the webpage of Citizen Watch Company was not a relied upon document in the Show Cause Notice, so the question of supplying the same to applicant does not arise. However it has been relied by the Commissioner without due notice to the applicant. In so far as the examination report of docks examination is concerned, the revenue has contended that the representative of the applicant was present at the time of examination and therefore the applicant were aware of the content of the examination report. Revenue has further contended that the documents were offered for inspection and the applicant should have availed the opportunity. The applicant has contended that there was no mention of the said examination report in the notice issued to them and the same was not supplied to them. They contended that the examination report appears on the Customs copy of Bills of Entry and not on their copy. No evidence of supply of the said Bill of Entry containing the Examination report was given by the revenue. We therefore come to the conclusion that the said documents have not been supplied to the appellant and therefore their assertion, in so far as i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case 12,12,000 watch parts translate into 3,03,000 watch movements/modules, i.e. each watch movement or watch module consisted of four watch parts. This conclusion is independently supported by information from the website of Citizen Watch Company, Japan (see Annexure I to this order) which suggests that the recognizable parts are the basic specification, the setting stem, the hour wheel, and dial washer. The record of examination carried out on BE 462860 and 462861 (Annexure II to this order) carried out by customs on the disputed imports also refers that parts key rod and washer were packed inside the same packing, confirming that more than one part constituted a watch movement. This reconciliation of the difference in quantity has not been dealt with by the order of tribunal dated 03/01/2017. As a result no findings on the ground of appeal relating to the non supply of these find place in the order. Even if the invoices obtained from Hong Kong Government, which were issued by the K Line Air Services (Hong Kong) Ltd., were considered to be a correct documents, the same would apply to the quantity mentioned therein. The order of Commissioner reconciles the difference in descr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conclusion, that results of investigation reported by Shri Miwa are in the nature of corroborative evidence, is proper. Para 57-58 hereinabove have discussed about the nature of evidence that payments, claimed to have been made, represent. It has been shown that noticee had attempted to claim as genuine, transaction that is not even with respect to invoice number(s) mentioned on the AWB. Hence, need for Shri Miwa's explanation about payments received from noticee, against invoices that Citizen, Japan denies and which are not mentioned on the related AWBs, loses relevance. 64. As far as the facts reported by Shri Miwa are concerned, it is noted that his communications clearly state that these are the result of investigation. Record shows that the said investigation by Citizen, Japan arose from Customs conveying copies of documents (claimed to be of Citizen, Japan) to Citizen, India and they in turn conveying the matter for verification of genuineness to Citizen, Japan. Therefore, there existed no requirement for reply to be given under provisions of Customs Act, 1962. The sum and substance of Shri Miwa's report is that the letters including the price offered therein d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich it contains,- (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the court and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. (2) The provisions of sub-section (1) shall, so far as may be, apply in court, as they apply in relation to a proceeding before a court, as they apply in relation to a proceeding before a court.] No such examination is forthcoming from the order of the Commissioner. No examination in terms of said section has been done by Commissioner. This issue was raised by the appellants in their appeal as ground I thereof. The order dated 3.1.17 does not deal with this aspect. 5. In view of above following error has crept in the order of tribunal dated 3.1.17 that needs rectification. The order ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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