TMI Blog2019 (1) TMI 1447X X X X Extracts X X X X X X X X Extracts X X X X ..... e value declared by other importers during the relevant time. Perusal of the same reveals that prices at which other importers imported identical items, from the same companies at about the same time, are either comparable or less than value declared by the appellants. It is found that the Department has ignored this fact and has not produced any import data of the contemporaneous import to indicate that the appellants have misdeclared the value of the import. This being the case the Department's contention that the appellant misdeclared the imported items cannot be accepted. Therefore the declared prices cannot be rejected in terms of Customs Valuation Rules. Thus, because of the very fact that the Department has not relied upon any other important documentary evidences or any contemporaneous import which were made at higher price than the appellants, we are not inclined to accept the contention of the Department - demand not sustainable - penalty also set aside - appeal allowed - decided in favor of appellant. - APPEAL NO. C/481 & 482/2012 - A/85061-85062/2019 - Dated:- 11-1-2019 - SHRI S.K. MOHANTY, MEMBER (JUDICIAL) And SHRI P. ANJANI KUMAR, MEMBER (TECHNICAL) Dr. Ni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try as against the actual transaction value of ₹ 1,44,49,359/-. A Show Cause Notice was therefore issued by DRI, Ahmedabad under F. No. DRI/AZU/1NV-08/2009 dated 10.08.2009 to appellant no. 1 2 proposing re-determination of value, imposition of redemption fine on the impugned goods, recovery of differential Customs duty amounting to ₹ 9,25,627/-, ₹ 6,77436/- and ₹ 23,086/- with interest and imposition of penalty under Section 114A and 112(a) of the Customs Act. Board vide Notification No. 153/2009-Cus (NT) dated 09.10.2009 appointed Addl. Commissioner of Customs (Import), Nhava Sheva to act as a common adjudicating authority for all the impugned imports made by appellant at JNPT, ACC Mumbai ACC, Ahmedabad. After considering the submissions of the appellant, the original adjudicating authority re-determined the value as ₹ 90,86,281/-, ₹ 56,38,783/- and ₹ 2,46,359/-; confirmed the duty demand of ₹ 9,25,627/-, ₹ 6,77,436/- 23,086/-; imposed a penalty of ₹ 9,25,627/-, ₹ 6,77,436/- and ₹ 23,086/- under section 114A on appellant no. 1 and ₹ 9,00,000/-, ₹ 5,50,000/- and ₹ 25,000/-; under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person accused of any offence shall be compelled to be a witness against himself'. Careful study of facts statements of partner of this appellant and so-called evidence branded as Copies of Contract Price by the DRI officers would show that this appellant is accused of an offence merely based on the compulsion to give self-incriminatory statement. A careful reading of the two statements of Shri Sunil Trivedi shows that the summon appears to be issued just to harass the appellants as the investigating agencies had nothing to prove undervaluation of imported goods and when a law-abiding citizen appears for giving statement, just to cover up the wrong act of initiating investigation against law-abiding person, without carrying out any investigation, statements are obtained under threat, duress or inducement, In the statement of Shri Sunil Trivedi recorded on 16-12-2008 [Enclosed at page(s) 111-114], Price in USD for the items imported by M/s. Sarjan are written based on whims and fancy of the investigating officers. On that day, there was not even a piece of paper to support such wrong prices. However, to cover up this wrong act of putting actual price, Mr. Sunil Trivedi was th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eat and duress and it is proved by that the statement is erroneous, the order in liable to be set aside pray for allowing our appeals relying on CC (Import) v. Wings Electronics [2015 (323) ELT 450 (SC)] upholding Tribunal decision wherein the Tribunal set aside the demand confirmed on the basis of statement of witness and unauthenticated copies of trade declarations in absence of any corroborative evidence by Revenue. 3.6. He further submitted that as the demand is not sustainable on merit as also on the ground of limitation in absence of any suppression or intent to evade payment of duty on the part of the appellants, the same may be set aside. 3.7. Lastly he submitted that in terms of provisions of section 112(a) any person, who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such an act becomes liable for penalty. When the confiscation of goods is not made and there is no evidence to show any commission or omission of any offence on the part of the partner, penalty u/s. 112(a) of the Customs Act, 1962 is not warranted and is liable to be set a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e manner and records that the importer-appellant accepted undervaluation. The second part of the statement recorded on 20.05.2009 i.e. after around 8 months, is also worded identically. 6.2 The evidence that the Department claims to possess is nothing but some documents which were obtained through the appellants themselves and is contained in emails gist of which is cited above. On a perusal of the said e-mails from M/s Micro Filter Co. Ltd others would clearly indicate that they were tailor made as per request of the importer well after the imports have taken place. The existence of the emails/ documents at the time of import is very much doubtful. It is pertinent to note that it is not the case of the department that such evidences were recovered in course of search. The records indicate that the same are produced by the appellants. 6.3 We find that the appellants further submitted that they have obtained the value declared by other importers during the relevant time (placed at page 293-302 of the appeal paper book). Perusal of the same reveals that prices at which other importers imported identical items, from the same companies at about the same time, are either compara ..... X X X X Extracts X X X X X X X X Extracts X X X X
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