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TMI Blog2024 (3) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be cancelled. 2. The brief facts are that based on the intelligence gathered, it appeared to DRI, Hyderabad Zonal Unit that Respondent - PVE (EC No. 1111004595), having registered office at Indore (M.P.) are importing 'Nutritional Supplements' i.e., DYM Glutamine, DYM Creatine, GAT Nitraflex, Insane Psychotic, DYM Whey Protein Elite, DYM Whey Protein ISO, MTECH Whey Protein Nitrotech 4lbs/ 10lbs etc., by way of undervaluation to evade Customs duty. It further appeared that Mr. Hitesh Nagwani - Proprietor of PVE, along with Mr. Sanjay Punjabi, have floated companies/concerns by the name (i) M/s Rax Trading Ltd., Hong Kong (Director - Mr. Sanjay Punjabi) and (ii) M/s Rudra Overseas, Indore (Proprietor - Mr. Sanjay Punjabi), for import of 'Nutritional Supplements' from Dubai by grossly undervaluing the goods. That on comparison of the transaction values of 8 items of the Bill of Entry No. 8216469 dt.20.07.2020 with the values declared by other importers at other ports, it appeared that Respondent - PVE has undervalued the imported goods. On a reasonable belief of undervaluation and mis-declaration in the Bill of Entry, the officers seized the said consignment under punchanama dt.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt recorded, Mr. Hitesh Nagwani and Mr. Sanjay Punjabi had stated that they share equal profits from the business of these firms. It appeared that they have hatched a conspiracy by creating the firms/companies and generated/prepared documents such as purchase orders, proforma invoices, Invoices at their own premises in Indore by deliberately declaring lesser values/prices, for declaring to Customs at the time of import of goods to evade Customs duty. Some items so imported have been in turn sold to Rudra Overseas, Indore. As Mr. Sanjay Punjabi is the director of Rax Trading Ltd and proprietor of Rudra Overseas, Indore, it makes the transaction related and does not pass the test of arms length transaction. 8. It further appeared that Mr. Hitesh Nagwani is actively involved in the business transactions of Rax Trading and Rudra Overseas. Thus, it appeared that they are related parties and the transaction value declared in the Bill of Entry do not represent the actual transaction value in terms of Sec 14(1) of the Customs Act read with Rule 2(2)(v) and Rule 3 of the Customs Valuation Rules, 2007 (CVR) and both have business interest in each other and there is no arms length distance b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l examination of the same, it was found that physical quantities are not in tune with the declared quantities. Thus, the consignment was seized. 13. Follow up searches were conducted as aforementioned and there was seizure of (i) cash of Rs.34,82,000/- (ii) one Vivo 1811 model mobile with two sims of different IMEIs. 14. Statement of Mr. Hitesh Nagwani - Proprietor of PVE was recorded on 31.07.2020 and 14.06.2021, wherein, he, inter alia, stated that he was importing Nutritional Supplements along with Mr. Sanjay Punjabi up to November 2019. Thereafter, as the case was booked by the Customs against Rudra Overseas, he started to import through is own firm - PVE. He along with Mr. Sanjay Punjabi had imported 12 consignments in the name of Rudra Overseas and 4 consignments in the name of PVE. They were sharing the profits equally. He had sold the goods imported vide 4 Bills of Entry by PVE to (i) Rudra Overseas, Indore, (ii) Life Care Agencies, Indore, (iii) BDG, Delhi, (iv) The Nutrition Planet, Ghaziabad and (v) Hips and Shoulders, Bangalore; that other than Rudra Overseas, remaining parties are not related; that they usually negotiate prices on whatsapp group. Further, he stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be considered as co-owner of Rax Trading Ltd, Hong Kong, which is owned by Mr. Sanjay Punjabi, merely because they travelled together or they had made certain mis-representations allegedly in visiting cards or for securing free accommodation or entry at certain events. Further, he urges that evidence on record indicates that Mr. Hitesh Nagwani - Proprietor of PVE is related to Mr. Sanjay Punjabi having interest in each other businesses. Learned Commissioner has erred in dropping the proposal of rejection of declared value and re-determination, demanding differential duty along with penalty etc. Accordingly, he prays for setting aside the Impugned Order and for confirming the proposal in SCN and/or remanding the matter to the Adjudicating Authority for re-determination. 18. Opposing the Appeal, learned Consultant for the Respondent - Mr. T. Chakrapani submitted that the Impugned Order is based on appropriate evidence, on examination of the allegations and evidence laid by Revenue and on correct application of the legal provisions. The Impugned Order is well reasoned and is a speaking order. The grounds of Appeal raised by the Revenue are more or less reiteration of the alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and therefore, we shall deal with the same after discussions on merits. 21. On merits, we find that the Ld. Adjudicating Authority had evaluated the evidences on record vis-à-vis the allegations, by examining the issues as reproduced below: - "a. Whether there is sufficient material on record of the proceedings to prove that the parties involved are 'related persons' within the purport of Customs Act and the rules made thereunder. b. Whether, in the event of the enquiry in respect of the above point being in the affirmative, there is evidence on record to prove that such relation had influenced the price of the goods in question. c. Whether, there are sufficient evidences on record to conclusively establish that the transaction values declared are influenced by their mutual relationship & thus liable to be rejected before resorting to the provisions of Rule 5 of customs valuation rules, adopting values of similar goods. d. Whether the goods belonging to other importers, whose values had been considered for comparison to arrive at the value of the goods in question, fall within the realm of 'similar goods' as contemplated in the Customs Act and the rules m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of firm M/s Rudras Overseas and four consignments in the name of M/s P.V Enterprises and the profit earned, was shared equally between him and Sri. Sanjay Punjabi who owned M/s Rudras Overseas and M/s Rax Trading, Hong Kong. 23. Based on the above evidences, the Ld. Adjudicating Authority had concluded as reproduced below: - "28.9. In this regard, I find that the investigative outcomes cited at (a) to (c) above, can in no way constitute legal grounds for bringing home the allegation of related party transactions conclusively influencing the transaction values in the imports made, while the same may at best prima facie arouse suspicion in that regard which would necessitate further investigation. It is also a matter on record that the legal status of Sri. Hitesh Nagwani, the proprietor of the noticee firm cannot be considered as a coowner of M/s Rax Trading Hong Kong owned by Shri. Sanjay Punjabi, merely because they travelled together or they had made certain misrepresentations allegedly in visiting cards or for securing free accommodation or entry at certain events. These instances cannot suffice to legally infer co- ownership or related parties transactions influencing the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jabi is the sole Director of M/s. Rax Trading & also he is the sole proprietor of M/s. Rudras overseas Indore (buyer of PV Enterprises). 28.11. From the foregoing, it is clear that for the deeming fiction of being related to come into play, the material on record of the proceedings should invariably support existence of one of the situations enumerated at 2(i) to (viii). As already stated herein above, the investigative outcomes enlisted above herein, do not support any such inference for reasons elucidated herein, in the preceding paragraphs. ............................................... 28.16. Had the show cause notice based it's allegations on the basis of availability of real invoices, if any, having the correct/higher value etc. or financial records/documents or some other evidence proving financial flow back of the undervalued consideration to the seller either through banking or non-banking channels, then it would have been a foolproof case of the Department. I find that no such evidence had been relied upon in the impugned show cause notice and the proposals in the show cause notice to reject the transaction value on the basis of non-financial peripheral circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of arriving at the valuation of the subject goods apart from the fact the issue of alleged fabrication of invoices was related to the investigations by the DRI, Indore in the case of M/s Rudras Overseas and not related to M/s P.V Enterprises. We observe that the case of M/s Rudras Overseas was pertaining to the period prior to the subject imports of M/s P.V Enterprises/ Respondent and therefore the allegations fabricated invoices is not a matter of relevance in the instant case. In this regard, the Ld. AR also agrees to the fact that though such fabricated invoices had been relied upon to allege under-valuation of the said goods but re-determination of value of imported goods has not been made on the basis of such invoices but based upon the contemporaneous imports. In fact, it is a now matter on record that no fabricated invoice or no invoice said to be original, has been relied upon in the instant case to support the elements of "related person" and consequent alleged undervaluation, as rightly observed by the Ld. Adjudicating Authority vide para 28.16 of his order, reproduced supra. In such a situation, we have no option but to accede to the submissions made by the Ld. Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rove the contra. He further argues that comparison of transaction values as shown in the SCN reveal that the values declared at other ports by the other importers for similar goods are much higher than the transaction value declared by M/s P.V. Enterprises, which clearly established under-valuation of imported goods; that the value of similar goods- nutritional supplements imported by other importers at or about the same time, with same brand, same manufacturer, same country of origin and similar description, comparable commercial quantities etc was taken for purpose of re-determination of transaction value in terms of provisions of Rule 5 of CVR, 2007; that the same stands supported with the images of corresponding Bills of Entry pertaining to such similar goods as reproduced in the SCN; that the value has been re-determined correctly in accordance with Rule 5 of CVR, 2007; that the evidences put forth by the investigating authority with regard to the values adopted on comparable imported goods clearly points out the act of mis-declaration of value resorted to by the importers. 30. We observe that the issue of re-valuation of the subject goods would arise only in a situation wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds (i) which although not alike in all respects, have like characteristics and like component materials which enable them to perform the same functions and to be commercially interchangeable with the goods being valued having regard to the quality, reputation and the existence of trade mark; (ii) produced in the country in which the goods being valued were produced; and (iii) produced by the same person who produced the goods being valued, or where no such goods are available, goods produced by a different person, but shall not include imported goods where engineering, development work, art work, design work, plan or sketch undertaken in India were completed directly or indirectly by the buyer on these imported goods free of charge or at a reduced cost for use in connection with the production and sale for export of these imported goods; 29.5 From the above, definition, it is abundantly clear that for such comparison to be legally permissible, the goods to which the imported goods are to be compared shall be constituent of like characteristic and component materials which enable them to perform the same functions and to be commercially interchangeable with the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n supp DYM Glutamine 300 Gms. The same has been compared to goods whose description has been given as Health Supplements- Glutamine 60S 300G - 60 Servings. The goods imported by the noticee is based on Nutrition Supplement DYM Glutamine and the goods have been compared to goods based on Health Supplements-Glutamine 60 Servings; Thus, one can cogently conclude that the goods whose values are proposed to be adopted for the purpose of adopting the value as similar goods U/R 5 are actually not the similar goods at all. 29.9. There is no material in the impugned Show cause notice in respect of the goods being compared to as regards the statutory essentials like Brand of the goods, details of manufacture and country of manufacturer. This has been the case with the entire exercise of comparison given in the impugned show cause notice. 32. The crux of the decision by Ld. Adjudicating Authority in the context is that the SCN failed to suggest that there is material on record that a proper exercise had been taken into consideration on the issues like, brand, ingredients, country of manufacturer, etc. The Ld. Adjudicating Authority had further exemplified his decision with reference t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seas, Indore. M/s Rax Trading Ltd, and M/s Rudras Overseas are owned by the same person i.e., Sri Sanjay Punjabi, which makes the transaction related and does not pass the test of arms length transaction." 35. Moreover, we note that the seizure of cash at the residence of Shri Sanjay Punjabi vide Panchnama dated 31.07.2020 has been made out, as if it is the sale proceeds of food supplements, imported by M/s P.V Enterprises/ Respondent and therefore, apparently, it is the case of the Department that the sales of the imported goods by M/s P.V Enterprises had direct connection with the seized cash as well as to prove the transactions to be "related". Hence, we do not find any infirmity in the discussions carried out by the Ld. Adjudicating Authority under para 28.17, as the same is the integral part of the SCN as well as of the defence submissions along with documentary evidences as detailed under para 26.7 of the subject OIO. 36. Regarding confiscation of the goods of the live consignment, the Ld. AR argued that the Panchnama dated 29.07.2020, drawn at the said port confirms that the subject goods were largely undervalued and also that some of the goods were mis-declared in descri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal, will not survive, as no appeal has been preferred by the Department against the OIO with reference to the role of the Shri Sanjay Punjabi, as a Respondent individually or even jointly. It would not be out of context to mention here that since, Shri Sanjay Punjabi has not been made a Respondent, he is denied of natural justice in offering his defense submissions. Hence, we refrain from any discussions on the contentions raised with reference to the Order related to Shri Sanjay Punjabi/ Co-Noticee. In other words, it is now deemed that the findings, with reference to Shri Sanjay Punjabi, as Co-Noticee have attained finality, as rightly claimed by the Ld. Consultant for the Respondent, especially in terms of alleged collusion and conspiracy between Shri Hitesh Nagwani and Shri Sanjay Punjabi. 40. The Appeal Memorandum also repeatedly refers to about the case in the SCN issued to M/s Rudras Overseas, Indore, and also to M/s P.V Enterprises/ Respondent in the instant case, in order to prove the existence of transactions to be related even in the present case. Specific attention was drawn to the modus operandi, said to have been evolved by both Shri Sanjay Punjabi and Shri Hite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rading LLC, Dubai in the case of live consignment, the Ld. AR argued that as per the investigations, it was noted that the said company was not dealing in any nutritional supplements as was evident from the website of the said company; that the logo of the said company printed on the invoice of M/s P.V Enterprises, Indore and the logo as per the website are different; that one Mr. Jawad and M/s Five Stone General Trading LLC, Dubai appeared to be related to M/s Rax Trading Limited, Hong Kong and therefore, the earlier consignments routed through M/s Five Stone General Trading LLC, Dubai, as shipper, and M/s Rax Trading Limited, Hong Kong as supplier to be considered as "related parties". The Ld. Consultant brought to our notice the observations of the Ld. Adjudicating Authority vide para 31 of the subject OIO. On perusal of the same, we find that the Ld. Adjudicating Authority had precluded himself from further discussions on the issue, though, he admitted that, as per the email dated 27.07.2021 of M/s Five Stone General Trading LLC, Dubai, based on inquiry caused by DRI, HZU by email correspondence dated 16.07.2021, confirmed that they had supplied the goods to M/s P.V Enterprises ..... X X X X Extracts X X X X X X X X Extracts X X X X
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