TMI Blog2020 (2) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... on 138C of the Act - Thus statements of Shri H S Chadha cannot be relied upon and given credence to substantiate the Departments claim of undervaluation without any corroborative evidence and the charge of undervaluation cannot be made out on mere assumptions and presumptions especially since he himself has stated on various occasions that there is no undervaluation and these are quotations. Tyres are regularly imported all over the country and therefore the Department could have easily garnered evidence of contemporaneous imports which it admittedly did not do. Appeal allowed - decided in favor of appellant. - Customs Appeal No. 51768 of 2016, 51783 of 2016, 52269 of 2019, 52754 of 2019 - FINAL ORDER NOS. 50063-50066/2020 - Dated:- 9-1-2020 - HON BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) AND HON BLE MR. BIJAY KUMAR, MEMBER (TECHNICAL) Present for the Appellant: Shri Aakarsh Srivastava, Advocate Present for the Respondent: Shri Rakesh Kumar, Authorised Representative ORDER ANIL CHOUDHARY: The issue in these appeals being common undervaluation of tyres imported by the appellant company is for trade and further the companies are under same managemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods imported under Bill of Entry No 6224101 dated 24.7.2014 g. Imposed Penalty of ₹ 1,00,000/- under Section 112(a)(ii) on the Director of M/s Vortex Rubber Industries Pvt Ltd, namely Shri H S Chadha 2. The brief facts are that appellant M/s Vortex Rubber Industries Pvt Ltd filed Bill of Entry No. 6224101 dated 24.07.2014 for clearance of Tyres and Tubes. However, the consignment was examined by Customs Preventive and the goods were seized under Section 110 of the Customs Act, 1962. The Department also alleged undervaluation and misdeclaration in the previous imports of the appellant. Investigation regarding undervaluation of appellant M/s Indo Silicon Electronics Pvt Ltd was also done since this Company also had the same Director Shri H S Chadha which also imported tyres and tubes. Search was also conducted in the godown of the appellant-Vortex on 16.07.2014 and RSP Stickers were not found on some tyres, following which the goods were seized under Section 110 of the Customs Act 1962 since the appellant did not produce documents at that moment for proving legal possession of those tyres. Data and some emails were retrieved from the electronic devices found in the offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctronics Pvt Ltd as to why the declared value of the goods should not be rejected under Rule 12 of Customs Valuation Rules and redetermined, why the goods under Bills of Entry Nos 6708636 and 6708637 dated 10.03.2014 should not be confiscated, why differential duty of ₹ 55,17,472/- for previous imports alongwith interest, and duty of ₹ 1,64,800/- and ₹ 1,38,919/- for Bills of Entry Nos 6708636 and 6708637 dated 10.03.2014 should not be demanded from appellant M/s Indo Silicon Electronics Pvt Ltd and penalty should not be imposed on the appellants M/s Indo Silicon Electronics Pvt Ltd and its Director Shri H S Chadha. This was adjudicated by the Ld Adjudicating Authority on contest vide order-in-original No 04/KJ/Pr.Commr/2016 dated 03.03.2016. Aggrieved by the said order-in-original, the appellants are in appeal before this tribunal. 9. Also, mainly on the allegation of undervaluation, another Show Cause Notice vide C.No VIII(SB)10/Cus/Prev/Delta/135/2014/745 dated 15.1.2015 was issued to the appellant- M/s Vortex Rubber Industries Pvt Ltd as to why the declared value of the goods should not be rejected under Rule 12 of Customs Valuation Rules and redetermined, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce) by Section 138C and 139 of the Act ibid. He relies on the judgement of the Hon ble Supreme Court in Anvar P. V vs P. K Basheer 2017 (352) ELT 416(SC) and this Tribunal in S.N.Agrotech vs Commissioner of Customs, New Delhi 2018 (361) ELT 761, wherein it was held that Section 138C of the Act ibid is pari materia to Section 65B of Evidence Act 1872 and therefore evidence in form of computer printouts etc can be admitted only subject to satisfaction of conditions precedent under Section 138C of the Act ibid and in absence of certificate, these electronic documents cannot be relied upon by the Department to prove undervaluation. In this case there is no such certificate. Therefore without verification of emails as these were quotations for further negotiation, thus statements of the appellant are unreliable, the Department is devoid of any proof to prove the charge of undervaluation. 11. Ld Counsel further submits that since these goods had been assessed by the proper officer based on transaction value, onus is on the Department to prove undervaluation. He states that as per Section 14 of the Act ibid, assessable value has to be arrived on the basis of price actually paid and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actors Pvt Ltd vs Commissioner of Customs Mumbai 2000 (122) ELT 321. 14. Ld Counsel further states that as far as appellant M/s Vortex Rubber Industries Pvt Ltd is concerned, the order of denying exemption from SAD(special additional duty in lieu of sales tax) on 'Wanli brand' goods detained at godown of appellant and those imported vide Bill of Entry No 6224101 dated 24.07.2014 is bad in law as it travels beyond the scope of the SCN, as this proposal has not been made in the SCN and thus merits being set aside. Even otherwise, if RSP stickers were not found on some goods in the godown, it was much after their clearance from the Port and is attributable to normal wear and tear. This does not mean that there were no RSP stickers at the time of clearance since these were cleared after due examination and assessment. Onus is on the Department to prove that the tyres were devoid of RSP/MRP Stickers at the time of import, since these are freely importable goods. 15. He submits that the whole case has been made on the basis of assumptions and presumptions and that undervaluation has not been proved and so for the appellant- M/s Vortex Rubber industries Pvt Ltd, the goods ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ischarged on the part of the Department. 17. Having considered the rival contentions, we find that tyres are not prohibited item under Exim policy, and can be imported freely. Further as the tyres are generally required all over the country there are several importers of identical/similar goods. We find that it is trite law that since the goods were assessed by proper officer based on transaction value, onus lies on the Revenue to prove undervaluation, which it has failed miserably to do so since it did not show any contemporaneous import data of identical or similar items or NIDB data to indicate undervaluation and therefore the invoice value is required be accepted and the transaction value itself and hence could not have been discarded, as held by various judgements of the Hon ble Supreme Court like CCE Vs Sanjivani Non-Ferrous Trading Pvt Ltd (2019) 2 SCC 378 and CC Vs South India Television Pvt Ltd (2007) 6 SCC 373. We find that there is no allegation or finding that the buyer and seller being related or of any extra payment to the supplier beyond the normal authorized banking channels and thus undervaluation is not established as held by this tribunal in Kelvin Infotech Pv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20. We also find that in the impugned order passed against the appellant M/s Vortex Rubber Industries Pvt Ltd denying exemption from SAD on Wanli brand goods detained at godown and those imported by Bill of Entry No 6224101 dated 24.07.2014 cannot be sustained as it was nowhere proposed in the SCN. The RSP stickers which were not found on some goods in the godown was much after their clearance from ICD and the Department has not shown that the RSP stickers were not there at the time of clearance. 21. In view of the above discussions and decisions cited supra, for the appellants M/s Indo Silicon Electronics Pvt Ltd, demand of differential duty, interest and penalty cannot be sustained on the appellant Company and appellant Director Shri H S Chadha. Resultantly, the impugned order against M/s Indo Silicon Electronics Pvt Ltd and its Director Shri H S Chadha is set aside. The appeals are allowed with consequential benefits and any amount appropriated by the impugned orders stands revoked. 22. In view of the above discussions and decisions cited supra, for the appellants M/s Vortex Rubber Industries Pvt Ltd, confiscation of goods, denial of SAD exemption, demand of differential d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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