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TMI Blog2024 (9) TMI 1363X X X X Extracts X X X X X X X X Extracts X X X X ..... t has undervalued the impugned goods with the intention to evade payment of Customs duty by suppressing the value and manipulating / fabricating the import documents including the invoice. Further, statement of Shri Sheetal Jain recorded on 15.06.2011 revealed that the value of the goods was mis-declared as USD 1.35 per case (24 tins) and that the actual value of the goods was GBP 4.55 per case. Accordingly, Show Cause Notice dated 21.09.2012 was issued to the appellant proposing to reject the declared value and to redetermine the value of the goods as GBP 10,920 as mentioned in the e-mail. The SCN also proposed to confiscate the goods and for imposing penalties. After due process of law, the original authority ordered for confiscation of the goods giving an option to the appellant to redeem the same on payment of redemption fine of Rs. 3,50,000/- under Section 125 of Customs Act, 1962. The value was enhanced to GBP 10,920 and appellant was ordered to pay differential duty of Rs. 2,97,256/-. The amount already paid by the appellant to the tune of Rs. 1,50,000/- was ordered to be appropriated. The original authority imposed penalty of Rs. 3,00,000/- under Section 114A of Customs Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis of commercial invoice issued by the suppliers is correct. This itself is retraction of the statement recorded by the Department under Section 108 of the Customs Act, 1962 and therefore cannot be relied for enhancing the value. The Ld. Counsel relied upon the decision in the case of Commissioner of Customs (Imports), Chennai Vs Sainul Abideen Neelam - 2014 (300) E.L.T. 342 (Mad.) to argue that statement alone cannot be the basis for enhancement of value. Such statement should be supported by other materials. 3.3 The Ld. Counsel vehemently argued that the redemption fine and penalty imposed are excessively high and harsh upon the appellant. The differential duty is only Rs. 2,97,256/-. The redemption fine imposed is Rs. 3,50,000/- and the penalty imposed is Rs. 3,00,000/-. It is submitted that there are no grounds for imposing a penalty of Rs.3 lakhs and prayed that the same may be set aside. The Ld. Counsel prayed that the appeal may be allowed. 4. Ld. A.R Shri Anoop Singh appeared and argued for the Department. 4.1 Para-3 of the show cause notice was adverted to by the Ld. A.R to counter the arguments put forward by the Ld. Counsel relying upon the Section 138C of the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments were signed by the appellant along with the date. 4.4 As per the statement given by Shri Sheetal K. Jain, during March 2011, the appellant contacted Shri Nitin Rana of J.B. Rupa & Co (Pte.) Ltd. and started negotiation for the import of Royalty Branded Ginger Beer. They finally came to an agreement for the supply of Ginger Beer @ 4.55 GBP per case of 24 Tins. Based on these discussions, the appellant deposited USD 1960.82 and USD 3222.00 which is equivalent to GBP 3152.72. Finally, the appellant made another payment of GBP 7667.67 and the balance amount payable is GBP 99.61. Thus, the actual price of the imported goods is GBP 10920 and appellant has made payment in piecemeal which is clear from the e-mail. In the statement, the appellant has stated that he had instructed the supplier to send invoice with lesser value of USD 1.35 per case and thus had declared the value in the Bill of Entry as USD 1.35 per case. It was admitted in the statement that the value of goods is GBP 10920 and not USD 3240 as declared in the Bill of Entry. In the reply to the SCN, the appellant has not explained the reason for mentioning a different amount in the e-mail. 4.5 Ld. A.R argued that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiation for the import of Royalty Branded Ginger Beer and finally they came to an agreement for the supply of Ginger Beer @ 4.55 GBP per case of 24 Tins. Based on discussion, he deposited USD 1960.82 and USD 3222.00 which is equivalent to GBP 3152.72. Finaly he made another payment GBP 7667.67 and the balance amount payable is GBP 99.61: The supplier shipped the goods from Belgium; He instructed Nitin Rana of J.B. Rupa & Co(Pte) Ltd. to send invoice with lesser value i.e. 1.35 USD per case and consequently declared the value in the said Bill of Entry as USD 1.35 per carton. Further, he stated that though he purchased the goods from J.B. Rupa & Co (Pte), Singapore, the goods were actually loaded from Belgium. Finally he admitted that the value of the subject imported goods is GBP 10,920 (C&F) 0.e. @ GBP 4.55 per carton/case and not USD 3,240 as declared in the Bill of Entry. He further stated that he had deliberately grossly undervalued the goods so as to avoid instructions, the shipper undervalued the invoice for the subject import consignment; payment of appropriate that he customs duty; As per his knew very well that mis-declaration of value of import goods is an offence under Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision in the case of Commissioner of Customs (Imports), Chennai Vs Sainul Abideen Neelam (supra). In the said case, the Hon'ble High Court was considering the dispute that the car imported by the importer was used by another. The allegation was merely based on statements. The said statement was retracted and importer gave another statement four months later. There were documents to show that the importer had purchased the vehicle and imported with valid documents. The order of the Tribunal setting aside the order of confiscation was upheld holding that the confiscation cannot be made merely on the basis of the statement which has already been retracted. It is to be noted that in the said case, the allegation was built up by department merely on statement. In the present case, it is not so. The statement is corroborated by the e-mail (document) which speaks about the transaction. Section 108 provides for power to summon persons to give evidence and produce documents. In the SCN, the Department has mentioned about the e-mail and the amounts mentioned in the e-mail. However, in the reply, the appellant has not put forward any plausible explanation as to why the appellant had paid h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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