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TMI Blog2024 (8) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... valued. Shri Varadharaj partner of the said firm informed the officers, that they were importing second-hand offset printing machines from various overseas suppliers as commission agents and were selling the same to buyers in India. Though the appellants have declared a total assessable value to the customs authority as Rs.1,60,61,285/- for the import of 6 said machines, the value based on materials collected by the DRI, allegedly worked out to Rs.3,16,37,782/-. M/s. Media Graphics thereby appeared to have evaded payment of customs duty to the tune of Rs.41,09,269/- for the period from February 2015 to December 2015. After due process of law, the Ld. Adjudicating Authority confirmed the said differential duty under section 28 of the Customs Act, 1962, (CA 1962) with interest and imposed an equal penalty on the firm under sec. 114A. A penalty of Rs.4,00,000/- under sec. 112(b) and Rs.20,00,000/- under sec. 114AA each were imposed on the partners Shri S. Varadharaj and Shri R. Janardhanan respectively. Aggrieved by the said order, the appellants preferred appeals before the Commissioner of Customs (Appeals), who rejected the same. Hence these appeals before us. 3. Shri S. Murugappan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and hard disks have not been certified as required under section 138 of CA 1962 and hence electronic evidence is not admissible. He stated that totally unconnected pro-forma invoices and quotations were sought to be linked by the department to the actual imports made, based on similarity of dates and without any further investigations with the persons concerned. In the light of unreliability of evidence, the demand for payment of differential duty was not sustainable and consequently the penalties imposed on the firm as well as the partners cannot be sustained. Accordingly, he prayed that the impugned orders may be set aside with consequential relief. 3.2 The learned AR reiterated the points given in the impugned order. 4. We have carefully gone through the appeal papers and have heard the rival parties. 5. Boards Circulars and instructions issued by the Board are binding on the authorities functioning under the respective statutes, unless they have been issued contrary to statutory provisions or in defiance of the interpretation of such provisions by a judicial forum. [Ref: Five judge Bench of the Hon'ble Supreme Court in Commissioner Of Central Excise, Bolpur Vs M/S. Ratan Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be as per the Form A annexed to this circular. c) In the event of the importer falling to procure an overseas report of Inspection / appraisement of the goods, he may have the goods inspected by any one of the agencies in India, as are notified by the DGFT under Appendix 2G of the HBoP 2015- 20 and Aayat Niryat Forms to FTP 2015-20, as amended from time to time (para 2.59 of Handbook of Procedures 2015-20 refers). d) At customs stations where agencies notified by DGFT are not present, importers may continue to avail of the services of locally empaneled Chartered Engineers. e) In cases where the report is to be prepared by the agencies in India notified by DGFT or the Chartered Engineers empaneled by Custom Houses, the same shall be in the Form & annexed to this circular. f) The value declared by the Importer shall be examined with respect to the report of the Chartered Engineer. Similarly, the declared value shall be examined with respect to the depreciated value of the goods determined in terms of the Circular No. 493/124/86-Cus VI dated 19/11/1987 and dated 4/1/1988. If such comparison does not create any doubt regarding the declared value of the goods, the same may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on printouts of electronic records, from devices statedly recovered during search operations. 8. The impugned order refers to Commercial Invoice KPN-APR08 dated 08/04/2015 for USD 36,000 filed along with BE 9249590 with consignee as Media Graphics, Chennai and states that the same machine was found invoiced vide proforma invoice no #KPN-APR08 dated 08/04/2015 for USD 114,000 addressed to Graphics Printing Press, Madurai. Hence alleging undervaluation. It is seen that the machine described as per Invoice KPN-APR08 is 'One set of Used Mitsubishi 2F4 offset printing machine with accessories', where as the machine referred to in proforma invoice no #KPN-APR08 is for 'Offset Printing Machine', which is not stated to be a secondhand machine. A similar pattern is seen with respect to the evidence relied upon by revenue for the other two machines. No verification has been made at the address given in the proforma invoice, presumably in the light of the admission of the value shown therein, in the statement of Shri S Varadharaj. Due to these lacunae the evidentiary value of the documents is doubtful. 9. We also find that the OIO in this regard depends on evidence gathered from electron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as a condition under Sec 65B(4) for admissibility of electronic evidence. The Court also overruled it's earlier decision in Tomaso Bruno (supra) wherein it was held that sections 65A and 65B of the Indian Evidence Act are only procedural provisions, since they are not a complete code on the subject and hence a certificate is not required under Sec. 65B. It also disagreed with the Ramajyam judgment (supra) of the Hon'ble Madras High Court, wherein it was held that in lieu of the certificate under section 65B, evidence aliunde (elsewhere) can be given by the person who was in possession of the device. 12. WE find that Section 138C of the CA 1962 provides for the admissibility of micro films, facsimile copies of documents and computer print-outs as evidence in a proceedings under the Act without further proof of production of the original. The section differentiates between the original information (primary evidence) contained in the "computer" itself and copies made there from (secondary evidence). The section would not come into play when original documents are being produced in evidence. The admissibility of evidence relating to print outs of electronic records as per the record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence on which, Revenue has sought to establish the case of under-valuation and mis-declaration of the imported goods is in the form of the computer printouts taken out from the laptops and other electronic devices seized from the residential premises of Shri Nikhil Asrani, Director in respect of which the requirement of Section 138C (2) has not been satisfied. On this ground, the impugned order suffers from un-curable error and hence, is liable to be set aside. 14. In fine we have found that there have been six secondhand machine imported by the appellants. The value for the purpose of assessment as per Rule 3 of CVR 2007, was at the time of import arrived at as per the procedure established under a Boards Circular. The said depreciated value arrived at in the 'Inspection Report and Valuation Certificate' of a CE based on the Circular, has not been challenged. Only the declared price, which had earlier been discarded by the department in favour of the depreciated value, has been sought to be rejected once again. No reason for ignoring the CE's Certificate has been stated in the impugned order. The department cannot blow hot and cold at the same time on its own circular without ..... X X X X Extracts X X X X X X X X Extracts X X X X
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