TMI Blog2019 (8) TMI 1518X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the prosecution witnesses was that this will not lead to any conclusion of the case, is in complete disregard to the provisions of Section 138B of the Customs Act. The issue regarding the cross examination is settled by the various decisions of Hon ble Supreme Court, High Court and decision of this Tribunal. It has been held in these cases that before placing reliance on the statements made the provisions of Section 138B has to be followed in letter and spirit. The adjudicating authority is required to examine the witnesses himself and come to the conclusion that the statement is relevant for adjudication of dispute before him and thereafter the cross examination is required to be permitted to the other side, which has not been done in these cases and settled principle of the law has been discarded on a flimsy ground that such process will delay the adjudication proceedings. The entire investigation is based on computer printout from the impugned order. We find that no separate investigation has been taken up against the appellant by the DRI but the entire price available on invoice found in the computer system of M/s Shree Abhishek India and Abhishekh India has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER Bijay Kumar : This order is being passed in pursuance of Supreme Court order dated 13.5.2018, Civil Appeal Nos. 202-209 of 2019, 75687- 75694 of 2018 in the matter of Commissioner of Customs (Appeals) Vs. M/s Deep Jyoti Wax Traders Pvt. Ltd. etc. By the said order the Hon ble Supreme Court set aside the judgment and order dated 3.5.2018 passed by the Customs, Excise Service Tax Appellate Tribunal (CESTAT, for short), East Regional Bench, Kolkata in MA Em Nos. 75388-75395 of 2018 and Customs Appeal Nos. 75687- 75694 of 2018. The relevant portion of the order is reproduced as under : Suffice it to observe that the impugned judgment, in our opinion, is very sketchy and cryptic. It does not deal with every aspect that ought to be gone into in deciding the statutory appeal both on facts and on law. We refrain from examining the contentions available to the parties on merits and instead relegate the parties before the Appellate Authority for reconsideration of the appeal afresh on its own merits and in accordance with law. The impugned judgment and order is set aside. The parties are relegated before the Appellate Authority for the reconsideration of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s included as part of the impugned order from para 2 to 37 is reproduced as under : Investigation -was taken up by DRI, Kolkata Zonal Unit (hereinafter referred to as DRI-KZU) on the basis of intelligence supported by recovery of incriminating evidences as passed on by Tuticorin Sub-regional Unit of DRI (DRI-TTN) about under-valued imports of Slack Wax and Residue Wax through Kolkata/Haldia port by certain importers. Consequently, premises of some importers and Custom House Agents (CHAs) were searched simultaneously on 02.02.2012 at various locations in Kolkata including the office premises of M/s. Chowdhary Udyog (Importer Exporter Code- 0291002145), located at (i) 23A, N.S Road, 1st floor, Room No.26, Kolkata- 700 001, (ii) 40B, Ground floor, Hindustan Park, Kolkata-700 029. Some documents were recovered from the said premises and seized under reasonable belief of those being useful in the investigation. Among the aforesaid recoveries from M/s. Chowdhary Udyog, the ones worth special mention were : A Sales Contract No. SC035-SPO-2011 dated August 5, 2011 between the seller M/s. PT. KIMIA YASA, Indonesia and the buyer M/s. Magna Dealers (P) Ltd., Kolkata (India) for supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... everal importers and the data of international pricing trends of the commodities in question at the material periods were also gathered and analyzed. Importation of Slack/Residue Wax of Iran/UAE 4. From the import data, it can be made out that the major suppliers of Slack Wax and Residue Wax of Iran/UAE origin to India are : M/s. Global Future Expander Corp. (GFEC), M/s. Harmony Impex, M/s. Remel International FZE, M/s. Asia Crown General Trading Co., M/s. Lubritech Trading FZE, M/s. Behran Oil Co., M/s. Grand Dignity Industrial Co. Ltd., M/s. Yazd Foundation Trading F.Z.E., M/s. Rine Universe Trading Co. LLC, M/s. Bastan General Trading Co. (L.L.C.), M/s. Pars Oil Co., M/s. Sepahan Shimi Tejarat Co., M/s. Rich Venture LLC, M/s. Fajr Tabandeh, M/s. Sun Impex FZE,M/s Jemasco Utama Pt, M/s PT. Kimia Yasa etc., from many of which subject importer M/s. Chowdhary Udyog have imported Slack Wax/Residue Wax. The account statements in respect of supplies coming from M/s. GFEC, Iran and Harmony Impex, UAE, as detailed in the forthcoming paras, is said to reveal the modus operandi adopted by these suppliers, whereby part of the transaction value was received in advance and remainin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amounts mentioned in the Invoices submitted to Customs did not reflect the actual Invoice value. In other words, the declared Invoice value did not appear to be the transaction value. 7. Outward remittance details pertaining to M/s AI was obtained from Oriental Bank of Commerce, Sivakasi. Date of remittance and the amount remitted in foreign exchange against the imported goods was found to be tallying with the foreign currency receipt for the Invoice(d) amount as shown in the Account statement sent by Shri Massoud Moussighi by e-mail to Shri Purba. But the difference in the actual (shipped) price and the Invoice(d) value of the Slack Wax was not explained anywhere. 8. Proforma Invoice The seized print-outs of e-mails downloaded on 30.09.2011 included correspondences of the Tuticorin-importer with one, Mr. Massoud Moussighi of M/s Global Future Expander Corp, Iran (M/s GFEC, for short), who had sent 3 Proforma Invoices. Contents of the said 3 Proforma Invoices are tabulated below: TABLE-1 S.No No. Date Description Quantity (MT) Unit Price USD/MT (C F) Invoice (USD) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.08.2009 and 10242010 dated 24.01.2010, Shri Purba confirmed that they happened to correspond to the two Bills of Entry nos. 471613 dated 21.10.2009 and 483183 dated 06.04.2010, respectively. While reconciling the Proforma Invoices to the commercial Invoices and confirming their corresponding Bills of Entry and admitting to the description, quantities etc, Shri Purba refrained from explaining the reasons as to why prices/values in the Proforma Invoices were different from those in the Invoices submitted to Customs. 11. Value of same goods in case of different importer but same supplier - Investigation by DRI-TTN also revealed that the suppliers of Residue Wax and Slack Wax to M/s AI and M/s SAI, viz., M/s GFEC and M/s Harmony Impex FZE, had supplied goods of same description to M/s. Savo Polymers Petro Products (P) Ltd (for short M/s SPPPL) who had imported Slack and Residue Wax through Cochin Port. Details of the imports made by M/s SPPPL are tabulated and furnished below: TABLE-2 Sl.No. Bill of Entry Date Description Qty. (MT) Price (USD/ MT) (CF) Supplier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 22.02.2013 wherein he admitted that he is known as Ramdev Verma, Verma and RD Verma in the trade; that as arranged by Dr Latiff of Iran, he received consignments from Shri Massoud Moussighi Invoiced under the names of M/s GFEC, Iran and M/s Harmony Impex FZE, Dubai, UAE. In response to a specific query as to what was the difference in the Residue Wax and Slack Wax insofar as their composition is concerned, he stated that that Residue Wax contains oil content in the range of 35-70% and the remaining Wax content, while Slack Wax contains oil in a range of 5-35% and the remaining Wax. He also admitted that the consignments corresponding to the Invoice numbers A1801, A1808, A1809, A1815, A1825, A1997, A2046, A2047, A2055 and A2065, which figured in the Account statement of Massoud Moussighi were indeed imported in the name of M/s AI, vide Bills of Entry Nos. 466814 dated 19/08/2009, 471152 dated 14/10/2009, 471613 dated 21/10/2009, 473843 dated 25/11/2009, 472536 dated 05/11/2009, 3116405 dated 04/04/2011, 4181953 dated 26/07/2011, 4378411 dated 17/08/2011, 4895987 dated 12/10/2011 and 4535849 dated 03/09/2011, respectively. On being questioned about the aforesaid account statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s placed through banks for remittance purposes and presented in Customs for assessment purposes are seen to be reflecting much less value. 17. The incriminating details and documents recovered on search of the premises of M/s. Kavya International in Delhi on 29.12.2011, some of which are attached as ANNEXURE-G to the subject Show Cause Notice(in short SCN ), included the following: i. Copy of CONFIRMED IRREVOCABLE COMMISSION NOTE , issued by M/s. MK Synergy SDN BHD (of Malaysia) clearly mentioning M/s. Kavya International of New Delhi, with contact person : Shri Sandeep Gupta, as their sole Distributor for the region India on commission against sales basis(Pg-1 of Annexure-G) ii. Copy of OFFICIAL RECEIPT, bearing Receipt No. MKSR-011-12/07 dated 26.12.2007 confirming receipt of USD 12923.81 from M/s. Vaishali Wax Products, Muzaffarpur. The footnote therein reflected the break-up of the receipted amount USD 12923.81 as :- USD 460 against contract no.MKS/31-12/07 and USD 12463.81 against MKS/32-12/07. The page (marked page 35 of Annexure-G) bearing hand-endorsed calculations made by Shri Sandeep Gupta of Kavya International, reflected that an advice was made by Shri Sand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Copies of Sales Contract Nos. MKS/37-01/08, MKS/38-01/08 and MKS/39-01/08 all dated 18th January 2008 of M/s. M. K. Synergy SDN. BHD, the Malaysia-based supplier of Indonesian Slack Wax, projected quantity of supply being 100 M.T. under the said three contracts [Annexure-G/Pg.5-11]. vi. Copy of OFFICIAL RECEIPT, bearing Receipt No. MKSR-013-01/08 dated 24.01.2008 confirming receipt of USD 36388.00 from M/s. Barasat Wax Refiner, Kolkata in respect of Sales Contract Nos. MKS/37-01/08, MKS/38-01/08 MKS/39-01/08 being payment through TT Transfer for Slack Wax SPO grade. The footnote therein reflected the break-up of container loads to be sent importer-wise, viz. M/s. Barasat Wax 2 FCL, M/s. Kanpur Twine 1 FCL, M/s. National Industrial 2 FCL[Annexure- G/Pg.12]. vii. Copies of identical letters dated 08.02.2008 from M/s. M. K. Synergy SDN. BHD to the concerned three importers and another set of identical letters dated 28.02.2008 regarding unavoidable delays in shipment against contract Nos. 37, 38 and 39 of 2008 due to plant maintenance and that for any further assistance the importers might contact M/s. Kavya International, attention to Mr. Sandeep Gupta, or Mr. Silva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f slack wax with the new supplier M/s. Jemasco Utama PT. i.e. USD 890 per M.T. for M/s. Barasat Wax Refiner and M/s. Vaishali Wax Products- less by USD 60 per MT than the price of 950 sought by M/s. M. K. Synergy SDN, BHD. [Annexure-G/Pg.21] (a) This statement titled DOWN PAYMENT VS INVOICES contains vis-a-vis the contracted value, details of the amounts of down payment made and the amounts remitted via Bank. In the said statement of Jemasco Utama in chart form against Invoice No. 05-23-220 dated 13.03.08 raised on M/s. Barasat Wax for supply of 2 FCL of SPO grade Slack Wax, the price in CIF is indicated as USD 890/MT, out of which : - C.A.D. (Cash Against Documents), i.e. the price indicated in the Invoice for remittance through Bank on receipt of documents is USD 400/MT - the amount of down payment received is shown as USD 490/MT (Total amount of down payment being USD 17,395.00 for supply of the net quantity of 35.5 MT to Barasat Wax). (b) Similarly, against Invoice No. 05-23-219 dated 12.03.08 raised on M/s. Vaishali Wax Products, the said chart of Jemasco Utama shows the same price of USD 890/MT in CIF for supply of 1 FCL of SPO grade, out of which also : - C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sponding Proforma Invoice No. IND 2500308 dated 06.03.2008 to M/s. Vaishali Wax Products for supply of Slack Wax Grade SPO @ USD 400 per MT; Term of payment : Down Payment and Balance cash against documents at sight, payable at the day original dox reach bank , signed Thomas Bouhier for Jemasco Utama, pt. [ANNEXUREG/ Pg.26] [compare these terms of payment with those mentioned in Proforma Invoice No. IND 2490308 dated 06.03.2008 raised on M/s. Barasat Wax Refiner, referred above, that are identical. ] xvi. Copies of print-outs (4 pages) of e-mail dated 05 June 2008 and 03 July 2008 from tbjak@attglobal.net of Mr. Thomas Bouhier of Jemasco Utama, pt. bearing June 2008 and July 2008 prices for LMO and SPO grades of Slack Wax in CIF terms for different Indian ports (all about, or in excess of, USD1100 per MT; the said e-mail also spelling out in brief the reasons for the current hike in price) sent to rexim3@hotmail.com of Mr. Rakesh Parekh, a Mumbai based indenting agent for some Indonesia based suppliers, including M/s. Jemasco Utama, forwarded in turn from rexim3@hotmail.com to globaltradesolutions2004 @yahoo.co.in of Mr. Sandeep Gupta of M/s. Kavya Internationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parekh of M/s. Universal Traders, 51, Darya Sthan Street, 1st floor Room No. 14, Masjid Bunder, Mumbai- 400003, who was the main indenting agent for M/s. Jemasco Utama in India then and almost all supplies of Jemasco Utama to importers in India happened to be routed through Mr. Rakesh. He was shown a bunch of seized documents and he confirmed that those were copies of pages recovered from the office premises of his firm M/s. Kavya International, Delhi during search on 29.12.2011. The above-referred bunch comprised invoice No. 05-23-219/08 dated 12.03.2008 of M/s. Jemasco Utama raised on M/s. Vaishali Wax, showing total invoice value for 17,900 Kgs of Slack Wax SPO grade as USD 15931.00 (CIF) with break-up showing down payment of USD 8771.00 and Balance due against documents as USD 7160.00. This rate of USD 890 per M.T. was the actual price at which the material was transacted between the seller M/s. Jemasco Utama,PT and M/s. Vaishali Wax Products of Muzaffarpur out of which an amount of USD 8771 was received by the seller as advance (down payment) from the buyer and the balance amount of USD 7160 was to be paid against documents by the buyer and therefore another invoice was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rasat Wax have been added together, totaling to 53400 Kg and multiplied by 490 to arrive at the total amount of down payments made against the said two consignments. He acted only as a commission agent between the overseas sellers and the Indian buyers and was not involved in transfer of any money in any manner. The final copies of shipment documents were sent directly by the supplier to the importer s bank for remittance of the balance payments against the documents. He clarified that these final documents, showing the balance amount only, were forwarded to importer s bank only after down payments were already received by the supplier or its agent. About the print-outs of e-mail communication contained in the said bunch of papers shown to him, he confirmed that those were excerpts from email communication between him and Mr. Rakesh Parekh, whereby Shri Rakesh Parekh in turn had forwarded the e-mail received from Jemasco Utama to him (Sandeep Gupta). As stated, he had signed each copy of the said bunch of 9(nine) Xeroxed pages as token of having seen them and as confirmation of their genuineness. He would also state that similar system of the total transaction amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ep Gupta) used to interact with one Mr. Silva and the letter sent under reference of VAS/2008/28 dated 05th March 2008 of M/s. Vaishali Wax towards cancellation of Contract Nos. MKS 37, MKS 38 and MKS 39, and bearing request for transfer of an amount of USD 36291.50 to M/s. Pt. Jemasco Utama, Indonesia from the amount of down payment made to MK Synergy, is also addressed to Mr. Silva. The little mismatch in figures of USD 36368.00 (confirmed as received by the supplier) and USD 36291.50 only (claimed as transferable by the importer ) might have occurred due to bank charges or sundry expenses involved. 19. Shri Sandeep Gupta, further stated that in one such series of contracts, the agreed price for supply of SPO grade Slack Wax of Indonesia origin in ISO tank was USD 790 per M.T., and that commission to be paid to his firm was at the rate of USD 25 per M. T. in rupee equivalent in India, on further scrutiny of records of the transaction recovered from Kavya International during the search, the written record thereof was spotted, as endorsed by Shri Sandeep Gupta himself in his own hand-writing, marked page 45 and referred to in foregoing sections, wherefrom it is seen that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was on the importer. He also admitted to have sold Slack Wax of Indonesia origin on high seas to M/s. Barasat Wax Refiner of Kolkata at prices based on overseas invoices, against which he had deposited the differential duty for imports in the name of his own firm, M/s. Vaishali Wax Products. 22. Summons was issued to Shri Rakesh Parekh of M/s. Universal Traders of Mumbai, requiring him to appear at the DRI office at Kolkata on 17.01.13 to give evidence and record his statement in relation to import of slack wax of Indonesian origin through him. Shri Parekh did not appear. On intervention by DRI, Mumbai Zonal Unit (MZU), Shri Rakesh Parekh appeared in Mumbai on 21.01.13 and his statement under section 108 of the Customs Act 1962 was recorded before the Senior Intelligence Officer of DRI-MZU, wherein Shri Rakesh Parekh stated inter alia that: He started his career as a broker in local market in trade for chemicals and later started his proprietorship firm M/s. Universal Traders at address 51, Daryasthan Street, 1st Floor, Room No. 14A, Masjid Bunder, Mumbai 400003. He came into the business of indenting for international trading of chemicals and allied products from the y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... munication between them for petty gains of commission for themselves. He (Rakesh Parekh) was not involved in the transactions of money between the supplier and the importers and they (Rakesh Parekh and Sandeep Gupta), as indenters, acted only on confirmation of payments communicated to them by the supplier. 23. As recorded in his statement, Shri Rakesh Parekh tendered some print-outs of e-mail exchanges with the foreign suppliers, local indentors and others through his e-mail account rexim3@hotmail.com , duly authenticated by him with his signature bearing date 21.01.2013. The bunch attached as ANNEXURE-GG (pages 1-31) to the SCN included the following: Letter dated 24.12.2007 from Sandeep Gupta to Rakesh Parekh asking the latter to send details of shipments of two buyers , namely: 1 SHYAM PETRO : 4 FCL SPO : CIF COCHIN PORT 2 TECHNO WAX : 4 FCL SPO CIF NHAVA SHEVA E-mail dated 09.01.2008 from Sandeep Gupta to Rakesh Parekh requesting the latter to confirm load of 10FCL of Slack wax SPO grade from Jemasco Utama in drums as the prices were accepted as per the given price list. It was also mentioned that e-mail would be sent soon to issue the P.Invoices ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LL DATE: TOTAL FUNDS THAT WERE RECEIVED BY THOMAS: USD 42500 -------------------------------------------------------------------------- ------------------------ VAISHALI WAX + BARASAT WAX 3 FCL SPO HALDIA DRUMS : 27,195 SAVO POLYMERS; 1 FCL; COCHIN : DRUMS : SPO 08,103 Techno Wax : 1 FCL SPO : ISO : NHAVA SHEVA 07,695 -------------------------------------------------------------------------- ----------------------- TOTAL FUNDS USED : 42,993. WE HAVE TO NOW PAY TO HIM : USD 495. -------------------------------------------------------------------------- ----------------------- (I.E. 42993- 42500=493, to be exact) At the bottom of the e-mail, there is a request for Shri Rakesh Parekh to let him (Sandeep Gupta) know how to settle and to ask Mr. Thomas and revert. And, hence Shri Rakesh Parekh reverted vide the above-referred e-mail dated 12.03.08 bearing his proposal to settle the balance amounts of USD 495 as above and USD 380, another outstanding amount on account of M/s. Shyam in one go so that matter is better cleared. To this Shri Sandeep Gupta reverted to Shri Rakesh Parekh vide e-mail dated 12.03.08 clarifying that the amount of USD 493 is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... industry trends and a spectrum of other value added information for the global petroleum industry and trade market. During investigation, the price data available for Slack Wax and Residue Wax (Iran, UAE and Indonesian) (FoB) for the period from July 2010 to 2012 was obtained and the price trend was analysed. The analysis revealed that the prices of Slack Wax and Residue Wax of Iran origin have normally been at par with those of UAE origin, the differences in the prices hardly ever exceeding the range of 5-20 US dollars per M.T. An exceptional trend of price of Iran-origin Residue Wax shooting high above the price of UAE origin Residue Wax was noticed in the year 2011. With broadening of the difference between the said prices from USD 15 in December 2011 to USD 35 in January 2011, the trend continued all through the year taking the difference to its peak of about USD 140-145 PMT in the few mid-year months of 2011, where after again the prices of Iran origin product came down gradually and heavily. From April 2012 onwards till the end of 2012, the prices of Iran origin Residue Wax was seen to be consistently less by 5-10 US dollars than the UAE origin Residue Wax. On further analys ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds bringing the prices of Indonesian Slack Wax down by about 60 USD by November and another 5-10 USD (FOB) in December 2011. But again a plunge is noticed in January 2012, taking the prices close to about the Aug.-Sept. 11 high and this trend is seen to continue till March 2012. 26. Investigation also revealed that Slack Wax and Residue Wax of Iran/UAE origin were grossly under-valued and actual Invoices had been wilfully substituted to serve the purpose of mis-declaration of value and thus evading huge Customs duty. Due to steep rise in petroleum prices globally around close of the year 2007, there appeared to have evolved a pattern of underinvoicing in supply of Slack Wax and Residue Wax from Iran/UAE and Indonesia, thereby restraining reflection of the global price rise to very little impacts on Invoice prices of different categories of Waxes supplied to Indian importers. On similar lines a number of consignments of Slack Wax and Residue Wax appeared to have been imported through Kolkata/Haldia port by M/s. Chowdhary Udyog of Kolkata from several suppliers of Iran/UAE/Indonesia. Among the suppliers are included such common names in the trade as M/s. Golden Way General Tradin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and indicators, a few of which are described in brief, hereinbelow: Both the aforesaid suppliers, namely M/s. M K Synergy SDN. BHD, Malaysia and M/s. Jemasco Utama, Indonesia being traders, were supposed to be procuring the material, viz. Slack Wax from M/s. Pertamina (Persero) Menara, Cakrawala, lt. 11 Jl. MH. Thamrin No.9, Jakarta 10340, the Indonesian state-owned nodal oil refinery and energy producing company doing production and sale of Slack Wax in Indonesia. It has also been evident from e-mail communications from the suppliers and their agents to the importers that when any price revision was to be done, reference was made to price hike by the Pertamina refinery and the trader suppliers being under constraints to revise the price accordingly in consequence. The suppliers were supposed to incur lot more expenditures over the price of procurement of the material from Pertamina (Persero) refinery, e.g. on transportation, storage, documentation, shipment, commission to indenters in India and the like, apart from keeping a profit for themselves. Investigation revealed evidences of supplies of Slack Wax made directly to importers at different ports in India at much higher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008. Similarly, the prices of USD 840 PMT (CIF) and USD 810 PMT (FOB) for supplies made by the Pertamina Group around May-June 2008 was very much commensurate to the price of USD 890 PMT (CIF) charged by the trader supplier M/s. Jemasco Utama for supply of SPO grade to Barasat Wax Refiner around Mar.-Apr. 2008. Investigation also revealed some evidences of much higher value in supplies of Indonesian slack wax made by other suppliers, including the ones supplying materials that were eventually imported by M/s. Chowdhary Udyog (directly or on high seas purchases), to various importers in India in 2008, some of which are reflected in the chart below: HIGH VALUE SUPPLIES OF INDONESIAN SLACK WAX MADE BY VARIOUS SUPPLIERS Indian Port code Bill of Entry No. Date Brief Description Grade Price in USD INCO TERMS Net Qty. - in M.T. Supplier INNSA1 828575 14.05.2008 Slack wax LMO 958.23 CIF 38.14 Amex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of a particular grade and demand for that particular grade. The said variation in prices of different grades tends to remain within the range of USD 10 to 40 at the most, i.e. evident from the price lists contained in the bunch of documents recovered from Shri Sandeep Gupta and tendered by Shri Rakesh Parekh. For example, in the pricelists of M/s. Jemasco Utama for the months of June 2008 and July 2008, the LMO Grade is shown uniformly dearer by USD 40 PMT CIF than the SPO Grade for both the months. In the e-mail communication dated 08 January 2008 from Thomas Bouhier of Jemasco Utama bearing price-list for the month of January 2008, SPO grade has been shown as costlier by upto 18 US dollars than even the DAO grade. Besides, from a quotation for all grades procured in January 2013 by an Indian importer M/s. Usha Lube Private Limited directly from M/s. Jemasco Utama PT., from whom M/s. Usha Lube have been importing DAO grade on a regular basis, the price quoted by M/s. Jemasco Utama for DAO and LMO grades is USD 1215 per M.T. C.I.F. Haldia/ Calcutta, while for SPO grade it is USD 1205 per M.T. C.I.F. Haldia/ Calcutta - the net difference between prices of DAO and LMO grades thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Jaju was seen to be sharing his awareness of prevalent higher value with another importer on e-mail and by M/s. Yash Trading, from whose premises a Proforma Invoice of higher value of M/s. Remel International was recovered. In addition, there were a number of instances of actual supply of the materials at declared higher values by M/s. Remel International and other suppliers, some of which have been cited in the foregoing sections. Taking all the above together under consideration, it appeared that the values declared by various importers, including M/s. Chowdhary Udyog at Kolkata port do not represent the true and correct transaction value, since they also declared values at par with the values of comparable products declared by M/s AI and M/s. It further appeared that the value, as declared for imports of Slack Wax and Residue Wax of Iran/UAE origin and Slack Wax of Indonesia origin by M/s. Chowdhary Udyog of Kolkata, as at par with the aforesaid lower price range followed by several importers for purposes of declaration of value for subject materials, may not be reflecting the actual transaction value in terms of section 14(1) of the Customs Act and the same, for the reasons d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e investigation revealing the methods and even some records of clandestine transactions involved. The lowest values in valuation database about importation of comparable (i.e identical and similar goods), therefore, cannot be applied for determination of value of imported goods in presence of all the incriminating evidences suggesting a much higher value to be the transaction value. For the self-same reasons, the value of subject goods cannot be determined under provisions of Rule 5 of CVR 07, with sub-rule (3) of rule 4 being applicable mutatis mutandis in respect of similar goods covered under rule 5. 30.3 In terms of rule 6, therefore, the value has to be determined either under rule 7 or under rule 8 of CVR 07. Rule 7 requires that if the goods being valued or identical or similar imported goods are sold in India, in the condition as imported at or about the time at which the declaration for determination of value is presented, the value of imported goods shall be based on the unit price at which the imported goods or identical or similar imported goods are sold in the greatest aggregate quantity. No such sale of the imported goods in comparative quantities is noticed in ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dinarily sold or offered for sale for delivery at the time and place of importation in the course of international trade, when the seller or buyer has no interest in the business of the other and price is the sole consideration for the sale or offer for sale, what primarily goes into consideration as the reasonable means to determine value in terms of the said rule 9 under the facts and circumstances of instant case is an inter-mix of what are enumerated below: (i) recoveries of incriminating evidences like higher evidences of value made on wide-spread searches conducted at various locations as afore-said or submitted/tendered under section 108 of the Customs Act 1962 by several persons interrogated; (ii) analyses of data about prevalent prices of different varieties of Waxes imported from different countries of supply published by Petrosilicon , which gives a near perfect picture of prevalent prices in F.O.B. terms for supply of several petroleum based products with generic description, including Slack Wax and Residue Wax, to India; (iii) evidences of higher value in the Customs import data base of actual imports made into India at such declared prices, provided prevalen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . GFEC sent in e-mail by Mr. Massoud Moussighi referred above (ref. para 3.2.7 of SCN). The said Proforma Invoice is found to correspond to Commercial invoice no. A1808 dated 22.09.2009 on the basis of which No. 471152 dated 14.10.2009 was filed by M/s. AI at TTN (ref. para 3.2.13 of SCN). The transacted price of Slack Wax imported under invoice A1808 dated 22.09.2009 appeared to be USD 735 PMT which is since lower than the prevalent price proposed determined for the preceding period. November 25, 2009 to January 11, 2010 No B/E 700 As per the recovered accounts statement of Massoud Moussighi, the transacted price of Slack Wax supplied vide Invoice A1815 and cleared vide Bill of Entry No. 473843 25.11.2009 from Tuticorin port (ref. para 3.2.17 of appeared to be USD 700 PMT C F, which is since lower than prevalent price proposed to be determined for the preceding period. January12, 2010 to June 22, 2010 Euro 291 715 As per the recovered accounts statement of Massoud Moussighi, the transacted price of Slack Wax, supplied vide Invoice A183 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 30.6 On similar lines, but for a major difference that the evidences of actual import at prices as proposed to be determined are either not available or are meager in the valuation data-base of imports during the relevant period and thus reliability for proposing such value is based largely on other evidences and indicators in comparison to the declared value in the Customs import data base, following value could reasonably be drawn to be the transaction value of Residue Wax of Iran/UAE origin imported by the importer: RESIDUE WAX(TABLE-4) Period of filing Bill of Entry Declared pricerange of subject importer (USD per M.T.) C F Proposed value for determination under rule 9 (USD per M.T. C F- by sea to India) Source/Remarks for relying upon October 21, 2009 to April 5, 2010 No B/E 520 As per the Proforma Invoice (No. 083102009 31.08.2009) of M/s. GFEC sent in e-mail by Mr. Massoud Moussighi and recovered from e-mail account of Shri Purba during investigation at DRI-TTN, the actual transaction value of Residue Wax of subject co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 415 840 As per the recovered accounts statement of Massoud Moussighi, the transacted price of residue Wax, supplied vide Invoice A2087 dated 02.11.2011, and imported under Bill of Entry 5345063 dated 30.11.2011 from Tuticorin port (ref. para 3.2.10 of SCN), appeared to be USD 840 PMT C F, signifies not only arrest of the rising trend in price, but little decline. SLACK WAX(Indonesia-origin) 30.7 Similarly on the basis of afore-cited recoveries vis- -vis the analyses of Petrosilicon data (subject to the period of its availability, as discussed supra ) and the evidences of actual imports at higher value all these years as detailed in Annexures B, B1 and DD1 of the Show Cause Notice, following value could be reasonably taken to be the transaction value of Slack Wax of Indonesian origin imported by subject importer: TABLE-5 Period of filing bill of entry Declared price range (USD per M.T.) CIF of subject importer Proposed value for determination under rule 9 (USD per M.T. CIF- by sea to India) Source/Remarks for relying upon January 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wax made at prices in excess of USD 1000 1100 PMT CIF during the later half of the year 2008 by suppliers none other than M/s. Jemasco Utama and M/s. Niku Exim Int l Pte Ltd. June 2008 to December 2008 No B/E 1115 (i) As per the series of incriminating evidences, including recoveries from the Delhi-based agent M/s. Kavya International s premises comprising among others Price quotations for a few months by M/s. Jemasco Utama, for SPO grade Indonesian slack wax to Haldia port at USD 1115 PMT in June and 1120 July 2008 [ref. para 4.2.1/xvi of SCN]. (ii) Evidences of even higher prices for imports actually effected during this later half of the year are available in the customs import valuation database, as mentioned in the above box. (i) A downtrend in imports by trader importers is noticed during the period apparently due to the soaring prices. January, 2009 to September, 2009 No B/E 710 The prices appear to have settled a little above USD 700 PMT CIF at the beginning of the year 2009. This can be seen from the customs import valuation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctively with reference to the periods indicated there against under rule 9 of CVR 07 read with section 14 of the Customs Act, 1962. 30.9 The ascertained value after re-determination of the value of the imported goods covered under 18 Bills of Entry filed by the importer in the subject case comes to ₹ 64,72,6904/- (Rupees sixty four crore seventy two lakhs six thousand nine hundred four only) The duty liability is calculated as ₹ 18,23,71,76/-(Rupees one crore twenty three lakhs seven thousand one hundred seventy six only) .The summary is given in table below. TABLE-6 Name of the importer Country of origin of the goods No. of EDI Bills of Entry of SLACK WAX of 2008 or later, assessed with P.D.Test Bonds No. of EDI Bills of Entry of RESIDUE WAX of 2008 or later, assessed with P.D.Test Bonds Assessable Value at the time of Assessment and as determined on Final Assessment under section 18(2) of The Customs Act, 1962 [IN RUPEES] Total amount of Duty paid and/or debited at the time of assessment [IN RUPEES] Assessable Value as proposed to be determined under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he importer; that it had been pointed out that there was an allegation of misdeclaration regarding the value of the goods; that in such a case the department was empowered to issue a show cause notice under section 124 of the Customs Act, 1962 read with section 111 thereof; that, however, it did appear from the averment in the affidavitin- opposition that although from all practical purposes the final assessment had been made of the goods but such final assessment was taken to be deemed ; that there was no final order of assessment. The Court vide the said Order dated 12.08.2014 enjoined the department to pass formal order of assessment and expressed that section 28 of the act would apply to the writ petitioner accordingly. The Judge inter alia further observed that he found no reason to set aside and quash the show cause notice dated 25th June, 2013 and directed the appropriate authorities to adjudicate upon the said show cause notice, following the observation made therein in accordance with law within a period of three months from date upon giving hearing to the writ petitioner and by a reasoned order; that it would be open for the petitioner to agitate before the Authorities t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 18 of the said Act. The Division Bench inter alia observed further that the appellant had filed a supplementary affidavit annexing a copy of order dated 15th September, 2014 said to be the final order of assessment issued in terms of the order dated 12th August, 2014 passed by the learned single Judge, challenge to which was in appeal before that Bench (The Division Bench hearing the Appeal ); that they (The Division Bench ) thus had a situation where there exists a show cause notice issued under, inter alia, Section 28 of the said Act which preceded the final order of assessment issued subsequently on 15th September, 2014; that they (The Division Bench ) record the consent of the petitioner rendered through Mr. Mehta, the learned advocate (for the petitioner/appellant ) that the petitioner accepts the final order of assessment dated 15th September, 2014 both as it being an order of final assessment as well as its contents; that the contents of the said final order are a repetition of the stand of the customs that the provisional assessment earlier made stood accepted causing discharge of the PD Test Bonds which the petitioner acknowledged and never disputed. Taking int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wdhary Udyog has the effect of finalization of provisional assessment in respect 5 (five) Bills of Entry (Bs/E) of Slack Wax of Iran/UAE origin and 1(one) B/E of Residue Wax of Iran/UAE origin and 6(six) Bills of Entry (Bs/E) of Slack Wax of Indonesia origin. Similarly, the aforesaid Final Order of Assessment bearing F. No. S40(Misc)-107/14A(H) dated 15.09.2014 passed by the Assistant Commissioner of Customs, Appraising Group-1Z 7Z, Mini Custom House, West Bengal against certain provisionally assessed Bills of Entry of M/s. Chowdhary Udyog has the effect of finalization of provisional assessment in respect 4(four) Bills of Entry (Bs/E) of Slack Wax of Iran/UAE origin and 1(one) B/E of Slack Wax of Indonesia origin. 37. The facts incorporated in the said Final Orders of Assessment dated 15.09.2014 are that to ascertain whether the imported goods are Slack Wax and/or Residue Wax, representative samples drawn from the respective consignments were sent to Custom House laboratory for testing; that the Bills of Entry were assessed provisionally under section 18(1) of the Customs Act, 1962 against P.D. Test Bonds and clearance was allowed pending receipt of test reports; that subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n record any want of material facts restraining them from making any final declaration of value. Provisional assessment for valuation of the goods in terms of section 18(1)(a) as amended had, therefore, been out of question and the value declared by them was full and final under the said provisions of selfassessment. The mis-declaration or suppression in respect of value etc. that had come to light from investigation, therefore, has to be ascribed to them as a wilful act on their part. Hence this appeared to be a fit situation for invoking Section 28(4) read with 28(7) and clause (b) of Explanation 1 attached to Section 28, and, the erstwhile Proviso to Section 28(1) read with the Explanation attached to it read with clause (b) to Section 28(3), under the Customs Act, 1962, as applicable during the material period of their currency since April 2008 and demanding the amount of duty short-levied along with interest applicable thereupon. Hence the differential duty amounting to ₹ 86,04,692/-(Rupees eighty-six lakh four thousand six hundred ninety-two) appeared recoverable from the importer under Section 28(4) of the Customs Act, 1962 along with applicable interest. 39. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adopting other illegal means to give effect to the conspiracy for ultimate evasion of duty, besides indulging in acts and/or omissions rendering the imported goods liable for confiscation under section 111, appeared to have committed offences liable to penalties under sections 114A, 112 and 114AA of the Customs Act 1962. 41. Accordingly, M/s. Chowdhary Udyog., its Director Shri Pawan Kumar Chowdhary vide SCN DRI. F. No. 33/KOL/APP/2012/Pt.II dated 06.11.2015 were called upon under provisions of section 28 and/or section 124 of the Customs Act, 1962 to show cause in writing within 30 days from the date of receipt of this notice to the Principal Commissioner of Customs (Port), Custom House, Kolkata, as under:- 42. M/s. Chowdhary Udyog, the importer, with reference to TABLE-I of the subject Show Cause Notice, were called upon under provisions of section 28 and section 124 of the Customs Act, 1962 to show cause in writing within 30 days from the date of receipt of this notice to the adjudicating authority as to why: I. The declared value for the goods imported vide impugned 18 EDI bills of entry filed at Custom House Kolkata, amounting together to a total assessable value of & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion the fact that the order under section 18(2) of the Customs Act had been passed and in view thereof the show cause notice was not tenable. In the Order passed by the Hon ble Division Bench, their statements were also recorded to the effect that the assessment order under section 18(2) of the Customs Act which was passed stood accepted by them. In the facts and circumstances all the allegations made in the show cause notice dated 25.06.2013 were laid at rest and stood finally adjudicated. The show cause notice dated 6th November 2015 is in verbatim the same allegations which were made in the show cause notice dated 25th June, 2013. The same relied upon documents are also part of the show cause notice which was previously issued. Therefore, this show cause notice has been issued to them on the selfsame allegations and charges which were concluded and the Department having not filed any cross objection and/or revision under section 129D of the Customs Act in the appeal filed by them before the Commissioner of Customs (Appeals) and the dispute having become res judicata , it was not open for the Department to pursue the same allegations as a second round of litigation or a second b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere at par with the value of imports at various Port in India. The final assessment of the bills of entries under Section 18 (2) of Customs Act, 1962 were not done and kept pending but in the meantime a show cause notice was issued in the year 2013 under Section 28 of the Customs Act 1962. In the show cause notice charge of under valuation was made on the basis of certain investigation done by the DRI at Tuticorin and at other places where search and seizure was made by the Custom Authorities at the premises of one M/s. Abhisekh India and on the basis of documents seized from the office of M/s. Abhisekh India which included its Statement of Account with the foreign supplier. In the respective show cause notice on the basis of value and price mentioned in the Statement of Account seized from M/s. Abhisekh India, transaction value of the appellant s import were sought to be rejected on the basis of third party documents. The show cause notice referred to few bills of entries filed by M/s. Abhisekh India and certain stray import by others. The appellant challenged the show cause notice by filing a writ petition in the Hon ble High Court contending that without completion of final asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Ramdeo Purba and others. The first adjudicating authority allowed cross examination of Mr. Ramdeo Purba and Sri A. Ramaswamy, Sri M. Raj, Sri G. Swaminathan and Uday Prakash Guptain view of the submissions made by the appellant that relied upon photocopies were suspected and inspection of originals were not given. Few references of imports mentioned in the show cause notice were not available in the Custom s Data. Dates were fixed for cross examination on 08.03.2017, 18.04.2017 and 09.05.2017 but none turned up. On 26.07.2017 new adjudicating authority assumed office and proceeded for hearing. Before the new adjudicating authority the appellants brought to his attention that the notice for cross examination could again be issued to the aforesaid persons but the adjudicating authority who passed the impugned order denied to issue any notice for cross examination by its communication dated 17th October 2017 made to the appellant. The appellant filed additional submissions questioning admissibility of the documents on the basis of which the transaction value were sought to be rejected or questioned in the facts and circumstances of the case. No hearing notice was given there after. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e second show cause notice was issued after one year one month and 25 days after the reassessment order. The appellant submits that the show cause notice were barred by limitation as extended period were not applicable inasmuch as all the allegations and charges were in the knowledge of the respondent which were already subjected in the re-assessment proceeding.. The appellant cited the following judgements. Caprihans India Ltd. Vs- Commissioner of Central Excise reported in 324 ELT page 8 (SC)Nizam Sugar Factory Vs- Commissioner of Central Excise reported in 197 ELT page 465 (SC), ECE Industries Ltd. Vs- Commissioner of Central Excise reported in 164 ELT page 236 (SC). The appellant next submitted that the transaction value was sought to be rejected on the basis of document seized from M/s. Abhisekh India at Tuticorin which has no relationship with the appellant s import. Further none of the original documents could be provided for inspection. No test report of the bills of entry on which reliance were placed for rejecting the transaction value were part of the relied upon document. Referring to certain stray imports without corresponding test report of oil content of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transaction value can only be disputed on the basis of contemporaneous import of higher value and if such material is not available in that case the transaction value cannot be rejected. The Hon ble Supreme Court in the recent two judgements in the case of Sanjivani Non-Ferrus Trading Pvt. Ltd. reported in 355 ELT page 3 (SC) and Century Metal Re-cycling Industry Vs- Union of India reported in 367 ELT page 3 (SC) has held that in the event contemporaneous import of identical or similar goods are not available in that case transaction value cannot be rejected. In the show cause notice as well as in the adjudication order it is admitted that there is no data available under Rule 3 to Rule 8 to reject the transaction value of imports made by the appellant. The appellant further submits that transaction value has been rejected relying on the uncertified publication of a private magazine known as Petrosilicon. No details of the publisher and no detail of any actual transaction having taken place is shown. A page from Petrosilicon Journal has been picked up in the show cause notice which does not show any import or any transaction on the price given. Source of price has also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e does not stand discharged. The appellant relied upon the judgement of the Tribunal in case of Gupta Export -Vs- Commissioner of Customs reported in 2002(146) ELT Page 361 (Tri Chennai). The appellant also relies upon the judgement of the Tribunal in case of Sheel Chand Industries -Vs- Commissioner of Customs, New Delhi reported in 2011(274) ELT Page 579 (Tr. Delhi) in which it has been held that inabsence of any evidence of any payment over and above the declared value the challenge to transaction value cannot be lawfully done. The appellant submits that the rejection of transaction value and the loading is bad in law. The adjudicating authority has not given any reason for loading the value. The appellant submits that it was wholly unjustifiable on the part of the adjudicating authority without discussing comparability of the goods to reject the transaction value. The adjudicating authority was bound by the statutory rules. He has rejected DOV data all over India by alleging a cartel which was outside the show cause notice. No allegation and evidence of cartel was demonstrated either in the show cause notice or in the order. The allegation of cartel was made outside the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained at or about the same time. (i) the transaction value of identical goods, or of similar goods, in sales to unrelated buyers in India; (ii) the deductive value for identical goods or similar goods; (iii) the computed value for identical goods or similar goods : Provided that in applying the values used for comparison, due account shall be taken of demonstrated difference in commercial levels, quantity levels, adjustments in accordance with the provisions of rule 10 and cost incurred by the seller in sales in which he and the buyer are not related; (c) substitute values shall not be established under the provisions of clause (b) of this sub-rule, (4) If the value cannot be determined under the provisions of sub-rule (1), the value shall be determined by proceeding sequentially through rule 4 to 9. RULE 4. Transaction value of identical goods. - (1) (a) Subject to the provisions of rule 3, the value of imported goods shall be the transaction value of identical goods sold for export to India and imported at or about the same time as the goods being valued : Provided that such transaction value shall not be the value of the goods prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication of rules 7 and 8 shall be reversed. RULE 7. Deductive value. - (1) Subject to the provisions of rule 3, if the goods being valued or identical or similar imported goods are sold in India, in the condition as imported at or about the time at which the declaration for determination of value is presented, the value of imported goods shall be based on the unit price at which the imported goods or identical or similar imported goods are sold in the greatest aggregate quantity to persons who are not related to the sellers in India, subject to the following deductions : - (i) either the commission usually paid or agreed to be paid or the additions usually made for profits and general expenses in connection with sales in India of imported goods of the same class or kind; (ii) the usual costs of transport and insurance and associated costs incurred within India; (iii) the customs duties and other taxes payable in India by reason of importation or sale of the goods. (2) If neither the imported goods nor identical nor similar imported goods are sold at or about the same time of importation of the goods being valued, the value of imported goods shall, subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... domestic market of the country of exportation; (iv) the cost of production other than computed values which have been determined for identical or similar goods in accordance with the provisions of rule 8; (v) the price of the goods for the export to a country other than India; (vi) minimum customs values; or (vii) arbitrary or fictitious values. The appellant submits that in view of the judgement of the Hon ble Supreme Court in the case of Century Metal Recycling Pvt. Ltd. rejection of transaction value was not proper and value could not be loaded by applying Rule 9 by taking recourse to certain stray evidences without any comparability. The order of confiscation of the goods were not tenable in fact and in law. The appellant further submits that the show cause notice is based on the stray evidences without any comparability and without any document showing comparability the subject import. The appellant cited judgement in the case of Basant Industries Vs- Additional Collector of Customs, Bombay reported in 81 ELT page 195 SC. Commissioner of Customs, Kandla Vs- Mira Impex reported in 167 ELT page 446. Spice Trading Corporation Vs Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and allow the appeals with consequential relief. The Hon ble Supreme Court in the case of Union of India vs. Food Speciality Limited report in 97 ECT page 402 (SC), held : Shri Vellapally, learned senior Counsel for the respondent assessee states that this appeal arises out of a consequential order made pursuant to the decision reported in Dalmia Industries Limited vs. Collector of Central Excise 1992 (61) CLT 295 pertaining to classification in respect of the same assessee. He submits that the question of classification was decided by the Tribunal in the assessee s favour and even though a caveat was filed in this Court by the asessee, there is no intimation of any appeal being filed by the Department against the Tribunal s decision pertaining to classification. He submits that irrespective of the merits of the Tribunal s decision on the question of classification, if the decision in the assessee s favour has become final, the question of the consequential order about quantum made by the Tribunal in favour of the assessee, cannot alone be challenged by the Department. He submits that this appeal must fail for this reason alone because the question of correctness of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /misdeclaration. The appeal is allowed on this ground itself without going into the issue of classification setting aside the impugned order. As a result, the impugned orders passed by the authorities below are set aside. In case of Nizam Sugar Vs- Collector of Central Excise, UP (197 ELT Page 465 (SC) it was held Without going into the question regarding Classification and marketability andleaving same open we intend to dispose of the appeals on the point of limitation only. This Court in, case of P B Pharmaceutical (P) Ltd. v. Collector of Central Excise reported in (2003) 3 SCC 599 = 2003 (153) E.LX..14 (S.C.) has taken the view that in a case in which a show cause. notice has been issued for the earlier period on certain set of facts, then, on the same set of facts another SCN based on the same/similar set of facts invoking the extended period of limitation on the plea of suppression of facts by the assessee cannot be issued as the facts were already in the knowledge of the department, It was observed in para 14 as follows: 14. We have indicated above the facts which make it clear that the question whether M/s. Pharmachem Distributors was a related person h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ratio laid down in this judgment it must be held that once the earlier Show Cause Notice, on similar issue has been dropped, it can no longer be said that there Is any suppression. The extended period of limitation would thus not be available. We are unable to accept the submission that earlier Show Cause Notice was for a subsequent period and/or it cannot be taken into consideration as it is not known when that Show Cause Notice was dropped, If the Department wanted to take up such contentions it is for them to show that that Show Cause Notice was not relevant and was not applicable. The Department has not brought any of those facts on record. Therefore, the Department cannot now urge that findings of the Collector that that Show Cause Notice was on a similar issue and for an identical amount is not correct. 9. Allegation of suppression of facts against the appellant cannot be sustained. When the first SCN was issued all the relevant facts were in the knowledge of the authorities. Later on, while issuing the second and third show cause notices the same/similar facts could not be taken as suppression of facts on the part of the assessee as these facts were already in the kn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity admits such contemporaneous import at a lower value but does not accept the same by holding that there was an intelligence that goods were under invoiced. By such intelligence Valuation Rules cannot be discarded. The valuation can only be disputed on the basis of contemporaneous import of higher value and if there is no such material available in that case transaction value cannot be rejected. The Hon ble Supreme Court in the case of Commissioner of Central Excise, Noida Vs- Sanjivani Non Ferrous Trading Pvt. Ltd. reported in 365 ELT Page 3 (SC) it was held- 10) The law, thus, is clear. As per Sections 14(1) and 14(1-A), the value of any goods chargeable to ad valorem duty is deemed to be the price as referred to in that provision. Section 14(1) is a deeming provision as it talks of 'deemed value' of such goods. Therefore, normally, the Assessing Officer is supposed to act on the basis of price which is actually paid and treat the same as assessable value/transaction value of the goods. This, ordinarily, is the course of action which needs to be followed by the Assessing Officer. This principle of arriving at transaction 2(2007) 6 SCC 373 3(2010) 10 SCC 5764(2012) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined in accordance with the provisions of Section 14(1). The value to be declared in the bill of entry is the value referred to above and not merely the invoice price. xxx xx xxx 12. However, before rejecting the invoice price the Department has to give cogent reasons for such rejection. This is because the invoice price forms the basis of the transaction value. Therefore, before rejecting the transaction value as incorrect or unacceptable, the Department has to find out whether there are any imports of identical goods or similar goods at a higher price at around the same time. Unless the evidence is gathered in that regard, the question of importing Section 14(1-A) does not arise. In the absence of such evidence, invoice price has to be accepted as the transaction value. Invoice is the evidence of value. Casting suspicion on invoice produced by the importer is not sufficient to reject it as evidence of value of imported goods. Undervaluation has to be proved. If the charge of undervaluation cannot be supported either by evidence or information about comparable imports, the benefit of doubt must go to the importer. If the Department wants to allege undervaluation, it mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uminium scrap was not a homogeneous commodity and therefore, cannot be evaluated on the 1 basis of the samples or lab testing. Further, the order holds that it was very difficult to find any identical/similar goods imported in India having same chemical and physical Composition and that the values of aluminium scrap identifical /similar to the imported goods in nature and specification were not available. Without commenting on correctness of the said statements, we would observe that the aforesaid reasoning for rejection of the transactional value, would not meet the mandate of Section 14 and the Rules as elucidated in M/s. Sanjivani Non-Ferrous Trading Pvt. Ltd, (supra) wherein it was held that the transaction value mentioned in the bill of entry should not be discarded unless there are contrary details of contemporaneous imports of other material indicating and serving as corroborative evidence of import at or near the time of import which would justify rejection of the declared value and enhancement of the price declared in the bill of entry. We have also elaborated and explained the legal position with reference to Rule 12 of the 2007 Rules. In the show cause notice and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Para 37.1) Next important issue after rejection of declared value as transaction value is re-determination of the value. In terms of Rule 3 (4) of the CVR 07, the value has to be determined by proceeding sequentially through rule 4 to 9, Rule 4 of the CVR 07 provides for determination of the transaction value on the basis of identical goods sold for export to India and imported at or about the same time as the goods being valued. However, in instant case, I find that this is a case where importers formed a sort of cartelizatioin and resorted to undervaluation of imported goods to evade Customs duty. The scale of operation was massive enough to corrupt the entire import data base. Hence this corrupted data can not take as contemporaneous import value. The value, therefore, cannot be determined by applying provisions of rule 4 of CVR 07. For the self same reasons, the value of subject goods cannot be determined under provisions of rule 5 of CVR 07, with sub-rule (3) of rule 4 being applicable mutatis mutandis in respect of similar goods covered under rule 5. Adjudication Order (Para 37.2) In terms of rule 6, therefore, the value has to be determined either u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will, thus, be seen that the price of US $ 1.80 each for 40,000 pieces was fixed after considerable negotiations and was fixed after keeping in view that the importers were old and valued customers. It is not known whether the other Importer, namely, M/s. Ravi Agricultural Industries had the same relationship. There is also no reason why the instance pointed out by the importer that the very same commodity had been supplied by another supplier at the same price of US $ 1.80 GIF per piece should have been totally ignored and Instead the stray instance of Ravi Agricultural Industries should have been picked up for the purposes of fixation of price. IT is essential to bear in mind the fact that in the business world, considerations of relationship with the customer are also a relevant factor/In the circumstances, we are of the opinion that the Department was wrong in revising the price from US $1.80 to US $ 2.20 GIF per piece. We therefore, allow this appeal, set aside the order of the Additional Collector as well as the Tribunal and discharge the show cause notice. However, there will no order as to costs. Commissioner of Customs, Kandla Vs- Mira Impex reported in 167 ELT pag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g period of time international oil prices cannot remain static. Taking into account above mentioned fact, I agree with the re-determined value of imported slack wax and residue wax as proposed by the investigation reflected in Table- 3 and Table-4 above and accordingly arrive at re-determined value of the imported slack wax and residue wax as reflected in Table-5 above . There is no reason given for adopting the value mentioned in Table 3 and Table 4. Therefore, the loading of value by the impugned order is liable to be set aside. Stray evidence instances cannot be used to challenge the declared value without even mentioning of comparability. Various judgement of the Hon ble Supreme Court has been cited on theproposition that there was no contemporaneous import of identical and similar goods at higher value and therefore transaction value cannot be challenged. The Hon ble Supreme Court in the case of Commissioner of Customs, Calcutta Vs- South India Television Pvt. Ltd. reported in 214 ELT page 3(SC) it was held : However, before rejecting the invoice price the Department has to give cogent reasons for such rejection. This is because the invoice price forms the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the conceptual difference between value and price comes into discussion. Inasmuch as no case of contemporaneous import of higher value has been shown the rejection of transaction value would not be tenable. There is no case of any clandestine remittance. In the case of case of Chand Industries Vs- Commissioner of Customs, New Delhi reported in 274 ELT page 579 (7 RIB) it was held that there needs to evidence on record to show that importer had paid any consideration over and above value declared by the importer to the supplier. There is no allegation of any clandestine remittance. The adjudicating authority was bound by statutory rules. There was no allegation of cartel in the show cause notice. The adjudicating order held in paragraph 36.11 of the order With regard to above contention, I find that the evidences gathered in course of investigation very clearly lays bare the cartel of several importer acting in cohesion and in cahoots with the suppliers. They indulged in suppression of facts and under valuation on a wider scale. As a result, the import data of the subject goods were corrupted and the very same data can not be relied upon as the contemporaneo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A combined show cause notice was issued to the Shri Hari Wax-O-Chem Pvt Ltd, Deep Jyoti Wax Traders Pvt. Ltd., Shiv Chemical Industries, Amit Kumar Agarwal alleging that there was a short levy in assessment of duty of the Bills of Entry on the basis of allegations made in the show cause notice and on 25th June 2013 a similar show cause notice was issued to Chowdhary Udyog, Pawan Kumar Chowdhary on the self same allegations mentioned above. 01.04.2014 Shri Hari Wax-O-Chem Pvt. Ltd., Shiv Chemical Industries, Deep Jyoti Wax Traders Pvt. Ltd. and Chowdhary Udyog challenged the proceedings under the show cause notice on the ground that since the Bills of Entry were provisionally assessed and final assessments were yet to be made the show cause notices were liable to be quashed. The Hon ble Court stayed the proceedings under the show cause by its order dated 1st April, 2014. 12.08.2014: The writ petitions came up for final hearing before the Hon ble Justice I. P. Mukherjee whereupon the Hon ble Court directed the respondents to complete the final assessment first and then adjudicate upon the show cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment order. One Bill of Entry bearing no. 428968 dated 29th August, 2008 filed by Shiv Chemical Industries was finally assessed under Section 18(2) of the Customs Act confirming the provisional assessment order. 07.10.2016 The second show cause notice was issued to Shri Hari Wax-O-Cam Pvt. Ltd. and Shiv Chemical Industries on the self same allegations and cause of action covering the same Bills of Entry alleging short levy in respect the same Bills of Entry which were finally assessed after the issue of first show cause notice dated 31st May, 2013. 15.11.2016: All the parties filed their respective reply to the show cause notice raising objection on issue of a second show cause notice on the same cause of action which were alleged in the show cause notice dated 31st May 2013 / 25th June 2013 which were in verbatim same and that the show cause notice having been quashed in view of the final assessment made after the show cause notice on the self same facts issue of second show cause notice was barred by principle of resjudicata and/or constructive resjudicata amongst other points that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the show cause notice contrary to the principles of natural justice and to the various judgements cited by the appellants in their written submissions. 07.03.2018: The appellant filed their respective appeals to this Tribunal challenging the order passed by the adjudicating Authority Tribunal. 03.05.2018: The Tribunal allowed all the appeals and set aside the respective orders of the adjudicating authority. 12.04.2019: The Hon ble Supreme Court of India remanded the matter for de novo consideration. 7. We would also like to reproduce the various provisions of the Customs Act, which are relevant for the purpose of determination of the issue along with the Customs Valuation (Determination of the Price of Imported Goods), Rules, 2007. Section 14 of Customs Act. Section 14 : Valuation of Goods. (1) For the purposes of the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force, the value of the imported goods and export goods shall be the transaction value of such goods, that is to say, the price actually paid or payab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gn currency into Indian currency; (b) foreign currency and Indian currency have the meanings respectively assigned to them in clause (m) and clause (q) of section 2 of the Foreign Exchange Management Act, 1999 (42 of 1999). 2. Definitions.- (1) In these rules, unless the context otherwise requires, - (a) computed value means the value of imported goods determined in accordance with rule 8. (b) deductive value means the value determined in accordance with rule 7. (c) goods of the same class or kind , means imported goods that are within a group or range of imported goods produced by a particular industry or industrial sector and includes identical goods or similar goods; (d) identical goods means imported goods - (i) which are same in all respects, including physical characteristics, quality and reputation as the goods being valued except for minor differences in appearance that do not affect the value of the goods; (ii) produced in the country in which the goods being valued were produced; and (iii) produced by the same person who produced the goods, or where no such goods are available, goods produced by a different person, but shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iteria of this sub-rule. 8. It is fact on record and not disputed by the parties, that the assessment in these cases were provisional, pending valuation dispute and test report of the imported consignment of slack was and residue wax. But pending finalization of provisional assessment the Customs Department issued a show cause notice dated 31.5.2013 to M/s Shree Hari Wax, Deep Jyoti Wax and Shri Amit Agarwal alleging that there were a short levy of the Customs duty in the provisional assessments on the basis of allegation made in the show cause notice. Similar show cause notices were issued to M/s Chowdhury Udyog and its Director Shri Pawan Kumar Chowdhary on the very same facts and the ground on 25 June, 2013. These show cause notices were challenged before the Hon ble High Court of Kolkata which stayed the proceeding under the show cause notice, by its order dated 1 April, 2014 which was finally disposed of on 12.8.2014 by Hon ble Justice Shri I.P. Mukherjee, who directed the Department to complete the final assessment first and then to adjudicate upon the show cause notice. This order of Hon ble Single judge was appealed against by the appellants before the Division Bench. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant that even the photo copy of the document relied upon by the department were not made available to them. 12. During the pendency of the adjudication procedure, the adjudicating authority got changed and the new adjudicating authority denied the cross examination of the prosecution witnesses and also closed the proceedings without giving opportunity to the appellant for the inspection of the original/copies of document relied upon by the department. 13. From the above narration, it is, thus, clear that the adjudicating authority has not permitted the cross examination of witnesses and also did not ask to permit the inspection of original or even photo copy of the document relied upon by the department. The reasons given by the adjudicating authority for not permitting the cross examination of the prosecution witnesses was that this will not lead to any conclusion of the case, is in complete disregard to the provisions of Section 138B of the Customs Act. The provisions of Section 138 B of the Customs Act will deals with relevancy of statements under the certain circumstances is reproduced herein under : 138B. Relevancy of statements under certain circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Timber Industries Vs. CCE 2015 (324) ELT 641 (SC); (ii) Shyria Overseas Pvt. Ltd. Vs. CCE 2017 (353) ELT 421 (Cal.) 15. We find that the entire investigation is on the basis of electronic communication available in the computer of M/s Shree Abhisekh India, and M/s Abhisekh India Ltd., under the proprietorship of Shri Vinod wife of Shri Ramdeo Purba. Shri Ramdeo Purba was involved in import of sale of waxes in respect of both of the above units apart from being representative of some of the Dubai based manufacturers at Tuticorin port. The seized print out e.mail were downloaded for the computer of these two firms which indicated that the invoices which were produced to the Customs were of the lower value when compared to those one which were available in the computer printout and e-mail and email. The extracted e-mail showed the price as under: TABLE-2 Sl.No. Bill of Entry Date Description Qty. (MT) Price (USD/ MT) (CF) Supplier 1 272322 23.06.2010 Slack Wax 13.18 740 R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the differential value to be settled on cash basis. There was cross reference of communication between Kolkata and Kanpur based importers obtained from M/s Abhisekh India and Shri Abhisekh India in Kolkata in the slack wax from UAE /Iran which made the Department to follow the pricing pattern as available on the computer of Shri Abhishekh India and Shri Abhishek from UAE based supplier. 17. We find that the entire investigation is based on computer printout from the impugned order. We find that no separate investigation has been taken up against the appellant by the DRI but the entire price available on invoice found in the computer system of M/s Shree Abhishek India and Abhishekh India has been borrowed without justifying their extra potation in the case of appellants. At this point of time, we are also persuaded rely on the provisions of microfilms, facsimile copies of document, computer print out as document and evidence, which reads as under: These are reproduced as under: SECTION 138C. Admissibility of micro films, facsimile copies of documents and computer printouts as documents and as evidence. - (1) Notwithstanding anything contained in any other law for the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erent combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. (4) In any proceedings under this Act and the rules made thereunder where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, - (a) identifying the document, containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has been stated that any proceedings under the Act, 1962, where it is desired to give a statement in evidence of electronic devices, shall be evidences of any matter stated in the certificate. In the present case, we find that the provisions of Section 138C of the Act were not complied with to use the computer printouts as evidence. The Ld. Counsel for the appellants submitted that there is a gross illegality committed during the retrieval of the electronic documents. It appears from the Panchnama and record of proceedings that the alleged date recovered from electronic documents, so seized, were copied in a hard disk in presence of one person and, thereafter, it was opened in front of other persons. It is noted that the certificate was not prepared during the seizure of the electronic devices, as required under the law. 9. The investigation is normally started after collecting the intelligence/information from various sources. The investigating officers are procuring the evidences in the nature of documents, statements, etc., to establish the truth. During the evolution of technology, the electronic devices were used as evidence. In this context, the law is framed to follow t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc., without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice. 17. Only if the electronic record, is duly produced in terms of Section 65B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of Examiner of Electronic Evidence. 18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment of the Hon ble Supreme Court (supra), the said electronic documents cannot be relied upon by the Revenue for confirmation of differential duty on the appellant. In the present case, the main evidence on which, Revenue has sought to establish the case of undervaluation and misdeclaration of the imported goods is in the form of the computer printouts taken out from the laptops and other electronic devices seized from the residential premises of Shri Nikhil Asrani, Director in respect of which the requirement of Section 138C(2) has not been satisfied. On this ground, the impugned order suffers from uncurable error and hence, is liable to be set aside. 12. The Ld. AR for Revenue relied upon the decision of the Tribunal in the case of M/s. Laxmi Enterprises (supra) in which the Tribunal upheld the charge of undervaluation and demand for differential duty. In the said decision, Tribunal overruled the objection of the appellant in connection with Section 138C, by holding that the documents printedout from laptop will be admissible as evidence in view of the fact that the truth of such documents stand admitted by the proprietor in his statement. We have gone through the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sequential application of the rule 3, 4, 5, 7, 8 of Valuation Rules disregarding to the provisions of Customs Act and Rules made there under. Thus, the enhancement of the value ignoring the transaction value is not sustainable. In holding so, we place reliance on the decision of Hon ble Supreme Court in case of Century Metal Recycling Pvt. Ltd. Vs. Union of India - 2019 (367) ELT 3 (SC). The relevant portion of the judgement in case of Century Metal is extracted below: 14. Rule 12, which as noticed above enjoys primacy and pivotal position, applies where the proper officer has reason to doubt the truth or accuracy of the value declared for the imported goods. It envisages a two-step verification and examination exercise. At the first instance, the proper officer must ask and call upon the importer to furnish further information including documents to justify the declared transactional value. The proper officer may thereafter accept the transactional value as declared. However, where the proper officer is not satisfied and has reasonable doubt about the truth or accuracy of the value so declared, it is deemed that the transactional value of such imported goods cannot be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porter, the proper officer has to apply his mind and decide whether or not reasonable doubt as to the truth or accuracy of the value so declared persists. (d) When the proper officer does not have reasonable doubt, the goods are cleared on the declared value. (e) When the doubt persists, sub-rule (1) to Rule 3 is not applicable and transaction value is determined in terms of Rules 4 to 9 of the 2007 Rules. (f) The proper officer can raise doubts as to the truth or accuracy of the declared value on certain reasons which could include the grounds specified in clauses (a) to (f) in clause (iii) of the Explanation. (g) The proper officer, on a request made by the importer, has to furnish and intimate to the importer in writing the grounds for doubting the truth or accuracy of the value declared in relation to the imported goods. Thus, the proper officer has to record reasons in writing which have to be communicated when requested. (h) The importer has to be given opportunity of hearing before the proper officer finally decides the transactional value in terms of Rules 4 to 9 of the 2007 Rules. 16. Proper officer can therefore reject the declared transactional value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. Proof beyond reasonable doubt is certainly not the requirement under proviso to Section 14 of the Act and Rule 12 of the 2007 Rules, albeit the above quote draws a distinction between a simple doubt and a doubt which is reasonable. In the context of the proviso to Section 14 read with Rule 12 and clause (iii) of Explanation to the 2007 Rules, the doubt must be reasonable and based on certain reasons . The proper officer must record certain reasons specified in (a) to (f) or similar grounds in writing at the second stage before he proceeds to discard the declared value and decides to determine the same by proceeding sequentially in accordance with Rules 4 to 9 of the 2007 Rules. It refers to a doubt which the proper officer possesses even after the importer has been asked to furnish further information including documents and evidence during the preliminary enquiry to clear his doubt about the truth and accuracy of the value declared. Therefore, there has to be a preliminary enquiry by the proper officer in which the importer must be given an opportunity for clarification of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-original in the present case which observes that the appellants had declared value of the aluminium scrap as ₹ 81.31 per kg, albeit the contemporaneous import data in the form of different bills of entry had indicated aluminium scrap values between ₹ 83.26 to ₹ 120.97 per kg. The said portion of the order refers to at least four bills of entries declaring assessable value of less than ₹ 85 per kg. Interestingly, the order in original also records that the imported goods being aluminium scrap was not a homogeneous commodity and therefore, cannot be evaluated on the basis of the samples or lab testing. Further, the order holds that it was very difficult to find any identical/similar goods imported in India having same chemical and physical composition and that the values of aluminium scrap identical/similar to the imported goods in nature and specification were not available. Without commenting on correctness of the said statements, we would observe that the aforesaid reasoning for rejection of the transactional value, would not meet the mandate of Section 14 and the Rules as elucidated in M/s. Sanjivani Non-Ferrous Trading Pvt. Ltd. (supra) wherein it was h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only in photocopies. The department has not been able to show the original copies of the contemporaneous import price inspite of direction for adjudicating authority. The photocopies of the documents are not the admissible piece of secondary evidence in the proceeding as held in the following cases : (i) Collector of Customs, Bombay Vs. East Punjab Traders 1997 (89) ELT 11 (SC); (ii) J. Yashoda Vs. K. Shobha Rani 2007 (212) ELT 458 (SC). 22. We also come on the issue regarding maintainability of the show cause notice the department has taken shelter of the decision of Hon ble Division Bench of Kolkata High Court wherein liberty has been granted to the Department to take action as per law. We are in agreement with the submissions made by the learned Advocate that the right course would have been to file appeal against assessment order before Commissioner (Appeals) and contest the case later on issuing of new show cause notice on the identical similar ground in terms of the Customs Act. One show cause notice has been quashed another show cause notice cannot be issued on the same ground. In holding so, we place reliance on the Hon ble Supreme Court decision in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the department are dismissed. Questions of classification and marketability are left open. Parties shall bear their own costs. 23. We also placed yet on the another case of Supreme Court in the case of ECE Industries Limited Vs. Commissioner of Central Excise, New Delhi 2004 (164) ELT 236 (ASC), wherein it is held that extended period of limitation is not invocable in subsequent proceedings on the same subject matter. Para 4, 5 7 is reproduced as under: 4. In the case of M/s. P B Pharmaceuticals (P) Ltd. v. Collector of Central Excise reported in [2003 (2) SCALE 390], the question was whether the extended period of limitation could be invoked where the Department has earlier issued show cause notices in respect of the same subject-matter. It has been held that in such circumstances, it could not be said that there was any wilful suppression or mis-statement and that therefore, the extended period under Section 11A could not be invoked. 5. In our view, the principles laid down in above case fully apply here. As earlier proceedings in respect of same subject matter were pending adjudication it could not be said that there was any suppression and the extended ..... X X X X Extracts X X X X X X X X Extracts X X X X
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