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TMI Blog2023 (8) TMI 1053X X X X Extracts X X X X X X X X Extracts X X X X ..... ,97,68,335/- and confirmed demand of differential duty of Rs.72,91,775/-with interest. The Adjudication Authority also imposed penalty of Rs.72,91,775/- under section 114A of the Customs Act 1962 and imposed penalty of Rs.10 lakhs on appellant Shri Antony Thomas under Section 112(a) of the Customs Act, 1962. Aggrieved by the said Order-In-Original, appellant filed appeal before this Tribunal and after considering the issue in detail, this Tribunal vide Final Order Number 760 & 761 of 2009 dated 17.06.2009 observed that the entire finding is based on the statement given by Managing partner. It is also held that the finding portion of the evidences does not deal anything about revaluation of goods after rejecting the invoice value. This Tribunal also observed 5. We have considered the submissions made in detail by both sides and perused the records. The entire case is regarding the undervaluation of 53 consignments of 'opal glassware' imported by the appellant. The details of the imports are given in the show cause notice as Annexure-A. On the perusal of the Order-in-Original, we find that the entire Order-in-Original is discussing only the statement given by the Managing Partner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich were produced by the appellant by observing as under : "I hold since the documents purportedly showing the value of contemporaneous imports being unauthenticated and unsigned cannot be accepted as an evidence." We find this is totally irregular. The contemporaneous import details which were produced before us clearly indicate the port of import, bill of entry number, bill of entry date, country of origin, imported items, quantity and declared value of the appellant during the relevant period. The said statement which was produced by the learned counsel before us would indicate that there were contemporaneous imports during the relevant period and the prices on those bills of entries more or less match. In the absence of any findings given by the learned Adjudicating Authority on this ground, we would not wish to go into the intricacies of appreciating the evidences. 5.2 In view of this, we find that the impugned order is not a speaking order. It is silent on many of the contentions raised by the appellants and has also not considered the binding decisions submitted by the appellant before him, more specifically the judgment of Hon'ble Supreme Court in the case of Mirah In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... draws our attention to the judgment of Hon'ble High Court of Mumbai in the matter of Commission of Customs (EP) versus National Steel & Agro Industries Ltd. reported in 2015 (322) ELT 690 (Bom.) "4. We have with the assistance of learned counsel appearing for the parties perused the order passed on 28th February, 2012 by the Commissioner of Customs (EP), New Customs House, Mumbai. We have also perused the order passed by the Tribunal and impugned in this appeal. The Tribunal had clearly concluded the issue that the activity of the respondent-assessee could be termed as "manufacture". In these circumstances, the only limited issue and which was being dealt with by the Tribunal is whether the assessee has produced documents to satisfy that the imported materials under the Advance Licensing Scheme have been correctly utilised as per the terms and conditions of the scheme read with relevant notifications." Maintained in 2015 (323) ELT A79 (Supreme Court) Thus the counsel for the appellant submitted that the impugned order is issued in total violation of the directions of this Hon'ble Tribunal. 4. Regarding allegation of undervaluation, Learned Counsel further submits that law is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such findings are totally extraneous to the allegations made out in the Show Cause Notice. Moreover, all such payments were either by way of LC or by way of Bank Remittance. It is a common knowledge that no person will or can repatriate unaccounted money by way of LC or bank transfer. Therefore, also such findings have no logic or is sustainable in facts or in law. when there are no evidence with respect to the under-valuation either by way of admission or by way of evidence regarding repatriation of extra payment or evidence of contemporaneous imports, the revenue cannot bring home the charge of under-valuation. 7. To substantiate the above submissions, learned counsel draws our attention to following judgments/final order. (a) Hon'ble Supreme Court in Eicher Tractors Ltd. v. Commissioner of Customs, 2000 (122) E.L.T. 321 (S.C.) has clearly held that neither Section 14(1) nor the Valuation Rules allow determination of the ordinary international value of the imported goods on the basis of date other than the price actually paid for the goods. There is no allegation nor finding that anything more than the price declared of the subject imported goods have been paid in the instant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel in the case of Sony Impex V/s Commissioner of Central Excise, Customs reported in 2006 (202) E.L.T. 486 (Tri.-Kolkata) is not squarely covered in the present case. While remanding the matter this Tribunal has not directed the Adjudication Authority to consider any specific ground but directed to reconsider the issue afresh. In such situation there is no infirmity in reopening the entire issue. However, the Adjudication Authority ought to have considered the findings given by this Tribunal regarding the sustainability of the finding regarding statement recorded from the Managing partner. Moreover in spite of furnishing details like port of import, Bill of Entry number, date, country of origin, imported items etc. for the relevant period and even after specific directions to consider the evidence produced by the appellant regarding contemporaneous import by this Tribunal, no efforts were made by the Adjudication Authority to call for the records available in the data bank regarding said imports to verify the facts after sharing such information with appellant before de-novo adjudication. As regard the findings related to overseas remittance, the Adjudication Authority has st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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