9911796707
TMI Blog2024 (11) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... umar, the representative of appellant's CHA M/s. Sea Pride Logistics and two independent Panchas on 18.05.2017. The quantity of imported goods during examination was found to be same as was declared in the Bill of Entry. The stickers containing details like manufacturer's name and address, month and year of manufacturing, importer details, quantity, item description, MRP, month of import etc. were also found affixed on the outer side of master carton box as well as on retail packs. A mark of "Quantum" was also found marked on the master box and retail packs. However, the representative samples of goods were drawn from the consignment and sealed for the further investigation. A market survey in respect of items imported by the importer-appellant was conducted. For this purpose, sample items were purchased from the retailer shops of importer-appellant i.e. M/s. Bajaj Sales Corportation, Shakarpur and M/s. Sky Solutions, Laxmi Nagar, Delhi. On verification of the samples so collected, the MRP mentioned on the sample purchased from these retailers was found to be different (much higher) than the MRP declared by the importer in the respective Bill of Entry for three of the items as foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h all requisite details were found to be true and correct declarations. Above all the market survey was done without any notice to the appellant. There is nothing on record to show as to how and when the alleged samples were purchased from the market nor there is any evidence to prove that the alleged alteration of MRP on those samples was done by the appellant. The allegations about the correspondence to have been back dated are also categorically denied. It is submitted that the correspondences made in the form of emails to Flipkart, Amazon and Snapdeal were made between 29.05.2017 and 26.07.2017. The emails referred were of the year 2016. The department has read the date of printouts of the said email which are of the year 2017. The copies of the emails are impressed upon to be on record. 3. Learned counsel further submitted that during cross examination of M/s. Moon Enterprises, the allegations of revenue stands falsified. It is submitted that the proprietor of the distributor, M/s. Moon Enterprises, namely Ms. Anju Rastogi was not allowed to be cross examined. With these submissions it is impressed upon that the demand of differential customs duty along with interest and pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fixed on the items as were collected from the retailers of the appellant during a market survey. (vi) Appellant was neither informed about the said market survey nor was called upon during the said survey. 6. we further observe that based on these admitted facts following three allegations were raised in the impugned show cause notice: (i) Since font size and style of stickers found on the cartoons of the goods imported vide Bill of Entry No.9676716 were found almost identical with both the MRP stickers on the goods purchased from two different shops of open market, the origin of both the type of MRP stickers is alleged to be same i.e. belonging to the manufacturer/the appellant. (ii) The appellant is the direct beneficiary of the act of alteration of MRP which is why the appellant has enhanced the MRP on three best selling products to get the undue benefit. (iii) The correspondences made by the appellant with the dealers and retailers and correspondence made by him with Flipkart, Amazon and Snapdeal in the forms of emails are alleged to be back dated. These allegations have been levelled based upon the statements recorded by the investigating agency during the investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is clear that the appellant was not directly selling his goods to these retailers. The goods were sold to distributors M/s. Moon Enterprise with proprietor Ms. Anju Rastogi. Her statement has vehemently been denied by the appellant still his request to cross examine her has been wrongly denied. The authority has hurried to decide the matter that too without any evidence to support the allegations of the show cause notice as observed above. In such circumstances the statement of Ms. Anju Rastogi even if it is recorded under section 108 of the Customs Act, 1962 but can not be relied upon to confirm the allegations and the demand based thereupon against the appellant as the she has not been cross-examined. Section 138 C of the Customs Act prohibits the admissibility of such statements. We draw our support from the decision of Hon'ble Supreme Court in the case of Andaman Timber Industries Vs. Commissioner of C. Ex., Kolkata - II reported as 2015 (324) ELT 641 (SC) and also on the decision of Arya Abhushan Bhandar Vs. Union of India reported as 2002 (143) ELT 25 (SC). 10. Rule 5 of Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules 2008 has been relied upon by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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