TMI Blog2023 (8) TMI 1294X X X X Extracts X X X X X X X X Extracts X X X X ..... her statements and evidences on record? - HELD THAT:- The statements and the under-invoicing documents were also corroborated by other importers of MDF from Green Panel Products, Malaysia whose names figured in the attachment of the incriminating email. It is also a fact that the other importers to whom show-cause notices were issued, approached the Settlement Commission Bench at Chennai. They admitted and paid the duty differences based on the incriminating email recovered from V R Marketing at Chennai and recovered under Mahazar. The fact that the other importers accepted the incriminating email and under-invoicing documents, goes to prove the authenticity and correctness of all the documents recovered. In view of these corroborated evidences, it is seen that Shri Sathyanaraya s statement and the documents recovered from his computer (extracted below) are authentic, therefore, the Commissioner was right in redetermining the value of the goods of 15 Bills of Entry as Rs.1,61,16,901/- [CIF] under Rule 4 of the Customs Valuation Rules, 1988 read with Section 14 of the Customs Act, 1962. Accordingly, the differential duty of Rs.35,49,849/- demanded under proviso to Section 28(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DRI; several incriminating documents were found and after recording statements from various individuals, notice was issued rejecting the declared value of the MDF boards in the above 15 consignments and for re-determination of the value at Rs.1,61,16,901/- (CIF) under Rule 4 of the Customs Valuation Rules, 1988 read with the Section 14 of the Customs Act, 1962. Differential duty was demanded along with interest invoking provisions for confiscation under Section 111(m) of the Customs Act, 1962, and penalty under Section 114A of the Customs Act, 1962. 3. The Commissioner vide impugned order dated 27.10.2009 redetermined the value of goods imported under the 15 bills of entry at Rs.1,61,16,901/- as against the declared value of Rs.61,01,811. Differential duty of Rs.35,49,849/- was confirmed; goods were confiscated; penalty of Rs.25,000/- and Rs.30,44,745/- on the appellant was imposed under Section 112(a) and 114A of the Customs Act, 1962, respectively and penalty of and Rs.1,00,000/- was imposed on Shri Habeeb Rahiman under section 112 (a) of the Customs Act. 4. The learned counsel Shri Raghunath on behalf of the appellant submits that as per Invoice dated 10.03.2006, 10 contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts show that all negotiations took place between the Malaysian Party and the Traders to which Shri Sathyanarayana was not a party and he merely stated that Shri Rajeshwara Rao will negotiate the price and the terms regarding undervaluation and payments of declared amount and differential amounts with the customers . 4.3 With regard to the email recovered on 21.04.2006, they submit that the contents of email cannot be relied upon for the reason that the same does not contain any authentication by the officer who is alleged to have recovered the same but contains only the signature of Shri Sathyanarayana as well as two independent witnesses who could not be traced. Therefore, there is nothing to indicate that what is now used against the appellant was actually the one recovered from the computer as alleged. 4.4 The following are the basic submissions of the appellant: a. Test report disclosed that the samples do not confirm to Grade I or Grade II and hence undervaluation cannot be alleged; b. The Statement of Shri Sathyanarayana was inadmissible since he had committed suicide and consequently, he was not available for cross examination. c. That the Excel Sheet clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case, the court considers unreasonable; or ----- Section 32 of the Indian Evidence Act states as follows: Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases: ----------------------------- (2) or is made in course of business . When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him. 7.1 From the above Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts were found and seized from the office of M/s. V R Marketing at Chennai on 21.04.2006. Shri Sathyanarayana in his statement admitted under-invoicing of the goods supplied by a trading company in the name of Green Panel Products. Shri V. Habeeb Rahiman, Proprietor of Ply Point, his statement was recorded on various dates on 25.04.2006 and 5.5.2006. It is also seen that at a later date when the proprietor was issued summon and called for recording his statement, he filed an anticipatory Bail Application No.3396 of 2006 in the High Court of Kerala and only on the direction of the Hon ble High Court of Kerala dated 13.06.2006, he reported to the DRI officers on 15.6.2006 and here it says that the Hon ble High Court of Kerala ordered to interrogate him and if found necessary to arrest him. Pursuant to this order, Shri V. Habeeb Rahiman reported before the DRI officers on 15.6.2006 along with his accountant Mr. M. V. Ahammed Nizar. The detailed statement of Shri Sathyanarayana which has been corroborated by Shri V. Habeeb Rahiman, the Proprietor of Ply Point, cannot be held as non-admissible just because Shri Sathyanarayana was not there for cross-examination. In fact, all the records ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s very clear that these under invoiced documents were unearthed only after detailed investigation. Retraction is an after thought only to avoid and evade payment of duty. Section 114A , which reads as under :- 114A. Penalty for short-levy or non-levy of duty in certain cases .- Where the duty has not been levied or has not been short-levied or the interest has not been charged or paid or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any willful mis-statement or suppression of facts, the person who is liable to pay the duty of interest, as the case may be, as determined under sub-section (8) of section 28 shall, also be liable to pay a penalty equal to the duty or interest so determined: --------- Provided also that where any penalty has been levied under this section, no penalty shall be levied under section 112 or section 114. The above penalty provisions clearly indicate that anywhere the duty has not been levied or has been short levied or the interest has not been charged or paid or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful misstatement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as prescribed under law, and therefore, the order passed by the Tribunal reducing the penalty is one without jurisdiction and, accordingly, it is hereby set aside. The substantial question of law is answered in favour of the Revenue Authorities and against the assessee . Therefore, penalty under Section 114A is upheld. 11. Based on the facts and circumstances discussed above, the goods are liable for confiscation and accordingly, the confiscation is upheld in all the 15 Bills of Entry. The High court of Kerala in the case Commissioner of Customs, Cochin vs. Office Devices: 2009 (240) E.L.T. 336 (Ker.) has held that 10% of the value as RF is reasonable and upheld the same, hence the redemption fine of Rs.2,00,000/- which is only 10% of the value is upheld. As per proviso to Section 114A of the Customs Act, 1962, provided also that where any penalty has been levied under this Section, no penalty shall be levied under Section 112 or Section 114. Accordingly, since penalty imposed under 114A is upheld, the penalty of Rs. 25,000/- on M/s. Ply Point under Section 112(a) of the Customs Act, 1962 is set aside. 12. In view of the above discussions, the appeal is disposed of in abo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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