TMI Blog2021 (6) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... ction value. In the present case, no doubt arose on the basis of comparable quantities in comparable commercial transaction nor it was observed at the time of clearance at the very port. But it is apparent that doubt arose on the basis of intelligence whereafter searches were conducted and recovery of documents and impugned imported food supplements got effected. Apparently no data or evidence is collected by the department after the said intelligence and during investigation as is otherwise required under Rule 4, 5 and 6 of the CVD Rules 2007 and is also required under Rule 12 - the present is the case where importer has admitted the entire allegations of alleged manipulation / forgery in the invoices as far as the price of imported goods are concerned At the stage of redetermination of value during investigation, the appellant himself had opted to pay the assessed differential duty. The voluntary payment is sufficient corroboration to his admitted manipulation for evading the duty. Such payment also amounts to the admission of appellant about re-determining value of the imported goods at lower prices. Though the learned Counsel has placed reliance upon the decision wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and their respective proprietors. The order under challenge is upheld only about Shri Sunny Gujral the proprietor of M/s Jaskaran Enterprise. However, the order of demand and imposition of penalty on other importing firms and their respective proprietors is hereby set aside. Since the amount of ₹ 12.95 lakh has already been deposited by Shri Sunny Gujral, the same is hereby ordered to be set off - Appeal allowed in part. - Customs Appeal No. 50105-50109 of 2016, Customs Appeal No. 50112 of 2016, Customs Appeal No. 50117 of 2016, Customs Appeal No. 51350 of 2019 - FINAL ORDER NO. 51539-51546/2021 - Dated:- 2-6-2021 - MR. RAJU, MEMBER (TECHNICAL) AND MS. RACHNA GUPTA, MEMBER (JUDICIAL) Shri Akhil Krishan Maggu Shri Vikas Sareen , Advocates for the Appellant Shri Rakesh Kumar , Authorised Representative for the Department ORDER 1. Present order disposes of following six appeals as have arisen out of common show cause notices No. 6119-29/2017 dated 28.11.2008 being decided by common Order-in-Original No. 12/2015 dated 20/21.10.2015: S.No. Appeal No. Appellant Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resumed from the residence of Shri Sunny Gujral. In addition, some imported food supplements having estimated market value of ₹ 1,87,805/- were also seized as per the Panchnama dated 02.08.2006. Similarly, during the searches conducted at the aforesaid premises of Shri Sunny Gujral, the seized goods as mentioned in Panchnama on 02.08.2006 were handed over to Smt Ekta Gujral for safe custody vide a supurdaginama dated 02.08.2006. During the search conducted at M/s. General Nutrition, some documents and a laptop were resumed along with some steroids having estimated value of ₹ 32,112/- with some more imported food supplements having estimated market value of ₹ 9,44,971/-which also got seized vide panchnama dated 02.08.2006. From the residential premises of the proprietor of M/s. General Nutrition, Shri Mardana Singh again some steroids of estimated market value of ₹ 1,54,850/- and some documents were recovered and seized. During the course of investigations Shri Sunny Gujral voluntarily paid ₹ 12.95 lakhs towards partial discharge of his duty liability vide letter dated 03.08.2006. An offer of getting the goods provisionally released was also given to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have heard Shri Akhil Krishan Maggu and Shri Vikas Sareen, Advocate for the Appellant and Shri Rakesh Kumar , Authorised Representative for the Department. 5. It is submitted that the present show cause notice is barred by limitation, hence Order-in-Original should not have been confirmed the proposal therein. To substantiate it is submitted that the show cause notice was issued in 2008 and same was not adjudicated till 2016 i.e. the adjudication order has taken more than 8 years from the date of issuance of Show cause notice. Since the show cause notice has been issued under section 28 of the Customs Act, 1962, limitation prescribed therein section 28(a) should have been followed. 6. Learned Counsel has placed reliance on the case of Siddhi Vinayak Syntex Pvt Ltd. vs Union of India reported as [2017 (352) ELT 455 (Guj)] with the mention that the Department had filed SLP against the said decision, but the same was dismissed by Hon ble Apex Court. Relying upon this submission, learned Counsel has submitted has prayed that the impugned appeals may be dismissed in limine on the ground of limitation alone. 7. While arguing on merits it is submitted that the Bill of Entry were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no circumstances as mentioned in Rule 3(2) is present, the value can be re-determined only based upon the value of contemporaneous import of goods under Rule 4 of the Customs Valuation Rules, 2007 or at the value of cotemporaneous import value of similar imports. Since no such value has been obtained by the department the alleged manipulation and or re-determination of value of the food supplement quantifying at the duty and demand thereof cannot be sustained. Department is also denied to have followed Rule 6 of Customs Valuation Rules, 2007 as no market enquiry was conducted in the in the matter of sale price of the imported goods. Resultantly the valuation and re-determination of differential duty is not based upon any of the Rules /provisions of Customs Valuation Rules, 2007. The said fact has absolutely been ignored by the Original Adjudicating Authority. Learned Counsel has relied upon the decision of Tribunal Chennai in the case of Nitee Trading Company vs. Commissioner of Customs (Sea) Chennai[2003 (161) ELT 279 (Tri-Chennai). Decision of Hon ble Apex Court in the case of Commissioner of Customs, Bomay vs. Nippon Bearings (P) Ltd. reported as [1996 (82) ELT 3 (SC)] has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he delay was rather on the part of the appellant. (iii) The actual / original invoices were recovered in the form of CD and documents from the laptop of the appellant Shri Sunny Gujral on which he had appended his signatures of having been verified and accepted. Hence, the same are duly admissible in evidence. (iv) The appellant had also forged the actual MRP stickers based on which the abatement in the MRP is allowed as per Norms and they have also sold the goods in the open market to various dealers without any Invoice / Bill and the transactions were in cash and the price mechanism was not maintained as per the MRP declared before Customs Authorities. Learned Departmental Representative has laid emphasis on para 10.1.3 of the Order under challenge. (v) The Mastermind Shri Sunny Gujral along with the other appellant have accepted the above said forgery and Undervaluation before the Directorate of Revenue Intelligence (DRI), Delhi Zonal Unit in all their statements under Section 108 of the Customs Act, 1962. (vi) It was Sunny Gujral who actually was controlling all the import firms vis-a-vis / Order for purchase / import, clearances of goods, management of Finances (ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present case, these documents do not attract section 138 of the Customs Act, 1962 as alleged by the appellant due to the admission of the appellant himself for the observed / confirmed manipulation with the intent to evade duty upon the food supplement import. The admission to this extent that Shri Sunny Gujral himself is owner of the laptops and the CDs and the print outs thereof were generated by him only is sufficient for the admissibility of their documents. No question of applicability of Section 138 C of Customs Act can at all arise nor any question arises of discharging any burden by the department to prove the admitted guilt. Learned Departmental Representative placed reliance on the decision of the Tribunal(Delhi) being affirmed by Hon ble Apex Court in the case of Laxmi Enterprises vs Commissioner reported as [2020 (372) ELT A 33 (SC). The earlier decision of Hon ble Apex Court in the case of Commissioner of Central Excise, Madras vs Systems and Components Pvt Ltd. reported as [2004 (165) ELT 136 (SC)] was also cited wherein it was held that what is admitted need not to be proved. Hence, neither there is reason for quoting any contemporaneous import data of identic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to any imported goods, he may ask the importer of such goods to furnish further information including documents or other evidence and if, after receiving such further information, or in the absence of a response of such importer, the proper officer still has reasonable doubt about the truth or accuracy of the value so declared, it shall be deemed that the transaction value of such imported goods cannot be determined under the provisions of sub-rule (1) of Rule 3. Explanation in (iii) to Rule 12 provides that the proper officer shall have the powers to raise doubts on the truth or accuracy of the declared value based on certain reasons which may include any of the six reasons contained therein, one of which is that there is a significantly higher value at which identical or similar goods imported at or about the same time in comparable quantities in a comparable commercial transaction. 12. In the present case, no doubt arose on the basis of comparable quantities in comparable commercial transaction nor it was observed at the time of clearance at the very port. But it is apparent that doubt arose on the basis of intelligence whereafter searches were conducted and recovery of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Court in the case of Commissioner of Central Excise, Madras vs. Systems and Components Pvt Ltd. [2004 (165) ELT 136 (SC)] has held that once there is admission of guilt, Department need not to prove the same. 13. We also observe that at the stage of redetermination of value during investigation, the appellant himself had opted to pay the assessed differential duty. The voluntary payment is sufficient corroboration to his admitted manipulation for evading the duty. Such payment also amounts to the admission of appellant about re-determining value of the imported goods at lower prices. Though the learned Counsel has placed reliance upon the decision wherein it has been held that payment of duty at the stage of investigation does not amount to the admission of guilt. But in the present case, the fact is that the guilt has not merely been admitted once, but it has been admitted in corroboration, at six number of times with no single retraction of either of these admissions nor there is any protest recorded while making payment in lieu of re-determined value. In the given circumstances we are of the opinion that the arguments of learned Counsel do not go to the root cause of his ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with respect to the documents being the computer print outs, the data whereof has dully been acknowledged to have been filled in by Shri Sunny Gujral himself. 15. However, we further observe that in addition to the admission as discussed above, there is no similar admission of the alleged under valuation to have been done by rest of the importers and by the proprietor of the rest of the impugned importing firms/ appellants M/s. Jaskaran Enterprises, proprietor Shri Sunny Gujral himself. The perusal of the statements of remaining proprietors i.e. Shri Shahid Ali, of M/s. Mondeo Overseas, Shri Rashid Ali of M/s. Kamlin International and Shri Mardana Singh of M/s. General Nutrition, reveals that Shri Sunny Gujral was the controller of all the imported firm established and maintained by and controlled by him alone. None of them had the knowledge of the activities of Shri Sunny Gujral who used to take the blank cheques from them. It is also apparent from their statements that at the time of clearance at port and also at the time of delivery of goods to his dealers, Shri Sunny Gujral personally used to go. The shop keeper of M/s. Total Fitness Shop also deposed about the sole activity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not produced any document with respect to any one else. The only document for doubting the transaction value is the price list. The law is settled that the price list cannot be the proof of transaction value. In the absence thereof and in view of no admission on part of the remaining importers then Shri Sunny Gujral, who is the proprietor of M/s. Jaskaran Enterprise, we see no reason for imposition of penalty and demand of differential duty from rest of the appellant firms and their respective proprietors. Demand against M/s. Fox is also not sustainable despite Shri Sunny Gujral, the admission maker, is the proprietor thereof because there is no document produced by the department showing imports being made by M/s. Fox by committing evasion of duty. The documents as produced on record and relied upon by department includes the invoice where M/s. Jaskaran is shown as consignee and Bill of Entry where M/s. Mondeo Overseas is shown as importer. Though the department has annexed a table along with the Show cause notice containing number of consignments received with the alleged under valuation of food supplements by other importers including M/s. Jaskaran Enterprises but there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e penalty upon said firm. We rely upon the judgement of Delhi High Court in the case of Anil Kumar Mahensaria vs. Commisioner of Customs reported as [2008 (228) ELT 166(Del)] wherein it was held that only one set of penalty can be imposed either on the appellant or upon his proprietorship firm. Finally, decision of Hon ble Apex Court in the case of Canon IndiatOTAL Ltd. vs. Commissioner of Customs in Civil Appeal No. 1827/2018 as decided on 09.03.2021 is not to be opined to be applicable to the facts and circumstances of the present case where admission of committing fraud has vitiated everything. 19. In view of entire above discussions, we summarise the findings as follows: The demand confirmed by the Original adjudicating authority is hereby ordered to be modified in terms of the above entire discussion. It is clarified that the order under challenge is upheld only about Shri Sunny Gujral the proprietor of M/s Jaskaran Enterprise. However, the order of demand and imposition of penalty on other importing firms and their respective proprietors is hereby set aside. Since the amount of ₹ 12.95 lakh has already been deposited by Shri Sunny Gujral, the same is hereby ordere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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