TMI Blog2000 (8) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... e differential value .is Rs. 2,26,08,214/-. 2. The notice alleged that £ 1,56,000/-, difference between what was actually paid to MBL, as consideration for the sale of these consignments, and the value as declared in the invoices issued by MBL has been made in four instalments by Bharat K. Bussa, who is the manager/director of the appellant Bussa Overseas Properties Pvt. Ltd. (the company for short). It therefore proposed enhancement of the va1ue of the goods and recovery of duty in terms of the proviso under Section 28(1) of the Act on the ground that the prices had been misdeclared. Penalty under Section 112 was also proposed on the company as well as on the managing director. 3. Both the company and Bharat Bussa contested the contents in the notice. The Commissioner however did not accept the contentions raised for reasons which we shall deal with later, and confirmed the demand of duty as proposed in the notice and imposed a penalty of Rs. 2.00 crores on the company and Rs. 50.00 lacs on Bharat Bussa. Both the firm as well as Bharat Bussa filed appeals against this order. The Tribunal after hearing both parties, passed orders dismissing these appeals. The matter was then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t circumstances they were issued. Apparently the invoices were issued by another department of MBL to its Accounts department. None of these invoices refers to any imports made by or orders placed by the appellant before us. They did not, in fact, record the name of any individual and are stated to be towards "additional selling price on sundry shipments to Indian customers." They are therefore entirely insufficient to show that any payment had been made by Bussa or the company to MBL. The document referred to as extract of ledger sheet is itself unsigned. It is also intrinsicly unreliable. It refers to payments made by letter of credit for a total of £ 526936.96. This amount was indisputably paid by the company towards payment of the Scotch whisky. There is an entry against this amount in the right side of the ledger in sales ledger account 24.33. This statement is also true, for four payments totalling to £ 213901.27 which have been paid by Bussa although not by letter of credit, as stated in the ledger account but paid by sight drafts. Against these entries, there is a reference to the sale account 24.33. It is thus clear that the account 24.33 refers to Bussa. However, the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion provided for in this section as specified in clause (c) of that Act does not exist, to the truth of the contents of the documents. The truth has therefore to be proved. This has not been done. According to Ajwani's letter, Ross was prepared to say that Bussa handed over payments to MBL, there being no correspondence between them in this regard. However, in his statement made before the investigating officer of HM Customs on 16-2-1995, Ross was unable to say that the amounts were handed by Bussa. He says "We have no recall whether these payments were handed over personally by Mr Bharat K. Bussa at these meetings or delivered by courier on behalf of Bussa Overseas and Property Private Ltd." His entire statement is based on the company's record, on which arguments have already been made earlier. There is also no allegation of the amount stated to have been paid in excess towards invoice value of each of the consignment. The statement showing the correct assessable value, and the assessable value declared and accepted appears to be based on the allocation of the amount of 29 invoices. No note has also been taken that identical goods have been imported by other persons at prices equ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t can be arrived at. Ross does not go back in his earlier statement. He only says that he does not remember whether payments were made by Bussa personally or delivered by courier on behalf of the company. This cannot affect the conclusion which ought to be drawn from considering the other pieces of evidence that the payments were made by or on behalf of Bharat Bussa. 12. He emphasises in the Tribunal's decision in the reliance placed by the Commissioner in Poonam Plastic Industries v. C.C. - 1989 (39) E.L.T. 634 to say that in matters such as this every link in the chain cannot be established with great degree of mathematical precision. He emphasises that in its earlier order, the Tribunal has considered all the relevant pieces of evidence and come to a clear recent conclusion. It had found that the fact of payment by Bussa has been established by a preponderance of probability. The present statement of Ross now relied upon is not by itself sufficient to overturn that conclusion. He also relies upon the judgment of the Supreme Court in State of Mysore v. Shivabassappa Shivappa Makapur - AIR 1963 SC 375. 13. Ross in his statement, that is now before us, explicitly says that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on company's record. Any element of personal knowledge on the part of Ross or any other person in the company relating to payment made by Bussa is therefore now excluded. We are now left only with the records of the company. 15. We have already listed these records. Let us now consider them in some detail. The four invoices, as has been contended, did not by themselves establish payment by Bussa or his company. They refer to additional selling price on sundry shipments to Indian customers. It is not the department's case that Bussa was the sole Indian customer. The invoice refers to "Indian customers" suggesting plurality. In any event, there is no plausible reason forthcoming as to why if the payments were made by Bussa, his name did not figure in this invoice. We do not see that MBL has committed any violation of laws of the United Kingdom by accepting these payments. Even if did, it would at no stage attempt to conceal or refuse to divulge that payments were received from Bussa, if they were actually received by them. It is therefore reasonable to accept that the invoices, if they were, in fact, issued by MBL would have allocated this amount to the shipments made to Bussa. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the other set of payments, alleged to be the additional consideration, to the general ledger, there being no reference at all to the second set of such documents. There is also an entry in the first set of payments relating to cheque and cash of £ 66,000/- "copies attached". A ledger normally will not contain such attachment, although there may be a cross reference to such documents by means of their number. There are also entries in the first column of its extract which are the heading "CRREF". The heading also is "Bussa payment January to December, 1990". The heading in a normally maintained book of account would be with reference to the name of the purchasing company i.e. the company (BOPP). These features which would not exist in normally maintained ledger of this document, therefore impel us to accept the contention that this was not an extract of a record that was being maintained by MBL in the normal course of its business. These unusual features militate against that being so; on the other hand, they strongly point to this being an extract which has been prepared at some one's insistence. 18. Is other document, then sufficient evidence of payments having been receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent is that of the person who purportedly signed it or made the entries. The documents that we are concerned with, bears no signature at all or bear the name of the person made entries in it. We do not propose to go into the question as to whether the presumption under Section 139 would be available in a case where the document is tendered in the proceedings other than prosecution proceedings, and will answer that it is available in a case like this. Therefore, as we have noted, it is not possible for us to conclude that it is signed by any official of MBL. In similar circumstances, the Supreme Court refused to accept that the presumption under Section 139 would apply to such a document. In C.C. v. East Punjab Traders - 1997 (89) E.L.T. 11 affirmed the refusal by the members of the Tribunal to place reliance on photo copies of documents received by the Customs department, some agencies which exported the goods which were under consideration. It took into consideration the fact that although the document bore a serial number and stamp of the Japanese Customs, it bore no signature of the exporter, forwarding agent, steamer agent or custom officers. It has therefore to be concluded th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 that it is well settled that the noticee does not have a right to cross examine the witness. As a matter of fact the Supreme Court in C.C. v. East Punjab Traders - 1997 (89) E.L.T. 11 above held that presumption under Section 139 of the Act (of the documents which we referred to above in paragraph above) could not be raised merely because the department offered cross examination of the steamer agent from whom export declaration was obtained. There is therefore much less scope for holding the presumption in a case where cross examination was not even considered. 23. We are not able to see how the decision of the Tribunal in Poonam Plastic Industries v. Collector - 1989 (39) E.L.T. 634 can be of assistance to the department. The Tribunal, in that decision, emphasises the difficulty that the Customs department faces in ascertaining the correct value of imported goods, in circumstances wherein the deals are between the two parties, the facts are not transparent and the transaction is covered by a veil of secrecy. In such a situation, it says, a reasonable view can be taken of the documents and other circumstances. There does not appear to exist any veil of secrecy in this case. Ros ..... X X X X Extracts X X X X X X X X Extracts X X X X
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