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TMI Blog2020 (9) TMI 479X X X X Extracts X X X X X X X X Extracts X X X X ..... cated at New Delhi. The said Note-Verbale indicated that criminal proceedings were lunched in the Court in Italy against four Italian persons in connection with money laundering, tax frauds and illegal financial activities. The said communication indicated that investigations were carried out by the Italian authorities which, inter alia revealed that in several cases of sale of marble (in blocks and slabs) by Italian companies to Indian companies, large scale under-invoicing had taken place, resulting in tax frauds in Italy and also loss of revenue to the Indian exchequer. During the course of search carried out at the appellant's premises, the DRI officers seized certain documents and a hard disk under a Panchnama dated 21.09.2016. The DRI officers also recorded statement of Mr. K.M. Swamy, Director of the appellant on 23.09.2016. During the course of investigation, the appellant had deposited an amount of Rs. 69,34,310/- into the Government exchequer. 2.2 Based on detailed investigation into the matter, the Customs Department issued the show cause notice dated 15.12.2016, alleging inter alia, that the appellant had presented undervalued invoices to the Customs for assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transaction value, the learned Advocate submitted that the department had not followed the procedures laid down under Rule 12 of the CVR and thus, the provisions contained in Rule 9 ibid cannot be invoked for re-determination of the value of subject goods. He has relied upon the judgment of Hon'ble Supreme Court in the case of Century Metal Recycling vs. Union of India -2019 (367) ELT 3 (S.C.) and Commissioner of Customs vs. South India Television (P) Ltd. - 2007 (214) ELT 3 (S.C.) to justify the above stand. 4. On the other hand, Shri K.K. Srivastava, the learned AR appearing for the Revenue reiterated the findings recorded in the impugned order. He further submitted that since on the basis of accounting records, the appellant had paid the differential duty amount in respect of the imported goods at the time of investigation, the allegation of undervaluation is proved and accordingly, confirmation of the adjudged demands in the impugned order is proper and justified. 5. Heard Shri Vipin Jain, the learned Advocate for the appellant and Shri K.K. Srivastava, learned Authorized Representative for the respondent-Revenue and perused the case records. 6. On careful examinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the payments, it has been stated that the payments are pre-deposit towards differential duty liability in respect of rough marble blocks from Italy as contended by officers of DRI; thus, it was clear that the actual invoice values which were shown to Mr. Swamy at the time of recording of his statement were checked for correctness and payment of differential duty has been made after recording of his statement; (c) that there was no hint of any demur or protest in the communications accompanying the payments and that there was no argument that the payments were not voluntary; hence, it could therefore be concluded that intelligence received from Italian authorities had considerable merit, especially when the appellant has checked amount of duty evaded by way of under invoicing and have paid the same voluntarily and have not raised any dispute regarding such voluntary payment; therefore, the fact of voluntary payment creates a body of inculpatory evidence that cannot be discarded; (d) that Note-Verbaledo not have admissible evidence inasmuch as the rigors of Section 139 of the Act were only applicable to proceedings before a court of law and not to quasi-judicial proceedings; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment" under the accounting head of "Current Assets"in the Balance Sheet prepared for the year ending 31.03.2017. Such documentary evidences prove the fact, beyond any shadow of doubt that the pre-deposited amount cannot be considered as voluntary payment and that the appellant was desirous in getting back such amount either at the adjudication or the appellate stage. Thus, it cannot be said that the appellant had deposited the duty amount out of its own volition and there was no hint of any demur or protest. Further, it is not the case of Revenue that the appellant at point of time had stated that the amount in question was paid as an admission of under valuation of goods. Even assuming that the appellant had expressed its willingness to make a deposit of the differential duty amount, but such willingness cannot be construed as an admission of undervaluation inasmuch as admission, if any, has to be backed by documentary evidence, since tax related issues are a matter of law, rather than a matter of willingness. In the case in hand, the department has not adduced any additional independent evidence to establish the charges of undervaluation of goods and had mainly relied upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntemplate or cover a situation like the present case, where investigations were initiated in a place outside India, consequent to which investigations were initiated in India. 10. The learned adjudicating authority in this case has accepted that the Note-Verbale only indicated commencement of criminal proceedings against the indenting agents in Italy and did not conclusively prove the guilt against such persons. In fact, as noted in the impugned order, even the Deputy Director of DRI had also expressed his inability to provide information regarding the final outcome of criminal proceedings against such persons. Since the investigations with regard to alleged fraud committed in exportation of goods in the originating country, has not attained finality, it cannot be hypothetically concluded that the appellant had indulged into the activities of undervaluing the goods. Therefore, in our considered view, the present proceedings initiated against the appellant were premature and cannot be sustained. Further, in the statement recorded under summon, Shri K.M. Swamy, Director of the appellant had denied the fact regarding involvement of the intermediaries/indenting agents in purchases mad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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