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TMI Blog2025 (5) TMI 1039X X X X Extracts X X X X X X X X Extracts X X X X ..... , Kolkata. 3. We note from the records that the genesis of the case is based on an alleged specific investigation about under-valuation of spares of Heavy Earth Moving Machinery imported by Indian importers from M/s E.B.Mc.Sun Pte Ltd., Singapore. The importing firm in the present case is one M/s D.D.Impex, Kolkata, a proprietary concern of one Shri Ranaji Ganguly. Vide the impugned order, another penalty of Rs.77,71,851/- was also imposed on Shri Ranaji Ganguly, Proprietor of M/s D.D.Impex, under Section 114A of the Customs Act, 1962 and the declared assessable value of Rs.47,37,209/- of the imported goods (imported vide four Bills of Entry) in the impugned facts, was rejected and the subject goods revalued at Rs.2,65,95,520/-. The said order thus confirmed the differential duty of Rs.77,71,851/-. 4. It has been brought to our notice that the appeal filed by Shri Ranaji Ganguly, Proprietor of M/s D.D.Impex, was allowed by this Tribunal vide Final Order No.75319/2025 dated 05.02.2025 after giving detailed findings in the matter. 5. It is now submitted before us that when the main importer has been let off by this Tribunal, the case of the consignment agent would however no longe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years after the importation of the impugned goods. The Notice proposed rejection of assessable transaction value of Rs.47,37,209/- declared by the appellant, in terms of the Customs Valuation Rules, 1988 and demanded differential Customs duty of Rs.77,71,851/-, along with applicable interest. We find that the said Notice was issued on the basis of some documents recovered from the Managing Director of EB McSun, Mr. Lim Eng Bee, in Bangalore on 27.11.2009 and the statements recorded from him and Mr. Abhijit Ray Burman, who was serving as the agent of EB Mc Sun in India during the said period. The appellant has questioned the veracity of the documents and admissibility of the said statements as evidence in this case. 6.2. We find that the laptop recovered from Mr. Lim Eng Bee was found to contain 4 soft copies of commercial invoices allegedly raised in the name of the appellant and issued in relation to the subject consignments. The appellant has submitted that these documents are unsigned and unattested photocopies. We observe that it is a settled law that no presumption can be raised under Section 139 of the Act in respect of such unsigned and unauthenticated documents. We agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med against the appellant on the basis thereof. In support of this view, we rely on the decision of the Tribunal at Mumbai in the case of Junaid Kudia Vs. Commissioner of Customs, Mumbai Import-II [(2024) 16 Centax 503 (Tri. - Bom.)] [as affirmed in 2024 (388) E.L.T. 529 (S.C.)]. The relevant part of the said decision is reproduced below: - "10. Upon perusal of the judgment of the Hon'ble Supreme Court in the case of Anvar P.V. (supra), we note that the Apex Court has categorically laid down the law that unless the requirement of Section 65B of the Evidence Act is satisfied, such evidence cannot be admitted in any proceedings. We note that the Section 138C of the Customs Act is parimateria to Section 658 of the Evidence Act. Consequently, the evidence in the form of computer printouts, etc., recovered during the course of investigation can be admitted in the present proceedings, only subject to the satisfaction of the sub-section (2) of Section 138C Ibid. This refers to the certificate from a responsible person in relation to the operation of the relevant laptop/computer. After perusing the record of the case, we note that in respect of the electronic documents in the form of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alue declared by the appellant in the said bills of entry and assesses the bills of entry without raising any objection regarding the valuation of the goods imported. These assessments have become final and no appeal has been filed against the assessment orders passed by the proper officers. Subsequently, if the Department wants to reject the transaction value declared by the appellant, there must be strong evidence of suppression of facts with intention to evade Customs duties. In this case, we observe that the evidence of invoices recovered from the laptop of Mr. Lim Eng Bee are unvalidated documents. After extraction of the invoices from the storage devices of Mr. Lim Eng Bee, no statement has been obtained from him for the purposes of clarification as to the authenticity of the said documents. Instead, the opinion of Mr. Abhijit Ray Burman, who neither prepared the invoices nor owned the devices wherefrom the same were allegedly extracted, was sought. As the documents were not authenticated they became inadmissible evidences and no demand can be raised or confirmed on the basis of the said documents. Thus, we find that the statements relied upon to substantiate the undervaluati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... establish as to how much of the undervalued imports were actually carried out and how the present appellant was concerned therewith. In so far as the details as worked out for levy of differential duty is concerned, we note that the order passed by the Co-ordinate Bench of the Tribunal has already discussed and dismissed the same for want of being simply based on un-signed and unattested photocopies, which can lead to no legal presumption under Section 139 of the Customs Act, 1962. The Co-ordinate Bench vide the detailed order, has already dismissed the enhancement of declared value as lacking in legal validity, in respect of four computers generated print outs/ invoices, that were not proved to be actual transactional invoices and were in a series of negotiating pre-purchase transactions. We also note that the overseas supplier, Mr.Lim Eng Bee, in his Bail Application before the Additional Chief Metropolitan Magistrate, Egmore, had submitted that the impugned invoices were neither "parallel invoices" or "actual invoices". 8. Moreover, Mr.Lim Eng Bee at the first opportunity before the Additional Chief Metropolitan Magistrate, Egmore, had pointed out that his statements were neith ..... X X X X Extracts X X X X X X X X Extracts X X X X
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