TMI Blog2000 (2) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... he Cost Insurance and Freight (CIF) value as US$ 1680 per metric tone (PMT). The benefit of Notification No. 203/92 Cus., dated 19-5-92 was claimed. Under this Notification dated 19-5-92 (as amended) exemption for Customs duty was provided to the materials imported against Value Based Advance Licence (VBAL), subject to the conditions as given in that Notification. In the show cause notice dated 17-4-95, it was alleged that the import of the said goods was in contravention of the provisions of the Import (Control Order) 1955 read with the relevant provisions of the Foreign Trade (Development and Regulations) Act, 1992, the value declared was not correct and the correct value was US$ 2675 PMT CIF; and that the exemption under Notification No. 203/92 Cus., dated 19-5-92 (as amended) was not available to the said goods imported. The matter was adjudicated by the Commissioner of Customs, who under his Order-in-Original dated 9-5-95 determined the CIF value at US$ 2477 PMT, denied the benefit of Notification No. 203/92 Cus., dated 19-5-92; imposed a penalty of Rs. 2 crores and a redemption fine of Rs. 3 crores. The matter came-up before the Tribunal by way of Appeal Nos. C-497-498/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal that material was produced by the importer challenging confiscation and penalty. The Apex Court observed that in the facts and circumstances of the case, they were satisfied that the course adopted by the Tribunal of permitting the respondent before them (the appellants before us) to adduce the evidence before it for the first time and then in proceeding to decide the case on merits on that basis, was not correct. The Supreme Court remanded the matter back to the Commissioner of Customs, Calcutta to decide the case afresh after giving an opportunity of hearing to both the sides. 3.Towards the process of re-adjudication in pursuance of the directives of the Supreme Court in their order dated 24-7-97 [1997 (95) E.L.T. 8 (S.C.)], the Asstt. Commissioner of Customs, Special Investigation Branch, Custom House, Calcutta, wrote to the appellants on 24-10-97 that subsequent to the passing of the original adjudication order on 9-5-95, the Deptt. had received through High Commission of India, London copies of original invoices of M/s. Trans World Metal Ltd., London, raised on M/s. Donald Macarthy Pvt. Ltd., Singapore showing the actual transaction value of US$ 2512 PMT CIF Calcutta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods were purchased from un-related parties and that the allegation in this regard were based on vague and un-substantiated assumptions. It was pleaded that the declared prices were genuine transaction prices based on contract with Indo Asian Development Incorporated, an un-related party. 6.The matter was heard on 23-12-99 when Shri Samir Chakraborty, Advocate with Shri O.P. Chowdhary, Advocate and Shri Abhijeet Biswas, Advocate appeared for the appellants. It was submitted that the goods were imported under contract with Indo Asian Development Incorporated, who were an independent party. The charge of under-valuation is based on un-authenticated documents placed at Pages 296-297 and 298 of the paper book. They were un-signed and unverified. No reliance could be placed on such documents. It was also submitted that the First Secretary (Trade), High Commission of India had not drawn any conclusions in his communication dated 28-2-96 at Page 291 of the paper book and that there was no report from HMG Customs. No charge of under-valuation could be sustained on such un-reliable documents. The Commissioner of Customs had made out a new case and the grounds taken in the show cause no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Tribunal that material was produced by them challenging confiscation and penalty. The Tribunal had permitted the importers to adduce evidence before it for the first time and proceeded to decide the case on merits on that basis. The Supreme Court observed that this course adopted by the Tribunal was not correct. The Apex Court further observed that if the Tribunal was of the view that a fresh opportunity was required to be given to the importers to adduce evidence and show cause in response to the notice given to them, then the course for adoption was to remit the matter to the Commissioner of Customs, Calcutta. The Supreme Court set aside the Tribunal's order and remitted the matter back to the Commissioner of Customs, Calcutta to decide the matter afresh after giving opportunity of hearing to both the sides. It is seen that the order of remand was made by the Apex Court on the ground that the course adopted by the Tribunal of permitting the importers to adduce evidence before it for the first time and then in proceeding to decide the case on merits on that basis, was not correct. When an order-of-remand is made with a direction to deal with a particular issue the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the material and secured the stock of copper metal at price which he quoted to Indian buyer. This contract may be compared with the contracts enclosed with this report. The experts have expressed surprise at such contract and its authenticity needs to be established." Again in communication dated 28-2-96, it has been stated "Thus, the invoicing by Indo Asian, Singapore to Hanuman Trading at US $ 1680 P.M.T is a transaction, which needs to be looked into carefully." There is nothing to indicate that any follow-up action was taken on these reports, and a price of US$ 2518 P.M.T. was adopted, as against the price proposed at US $ 2675 P.M.T. in the show cause notice dated 17-4-95 and the price of US $ 2477 P.M.T. determined in the original adjudication order dated 9-5-95. On the one hand we find that the approach of the ld. Commissioner of Customs was not based on the sound principles of valuation and on the other, we consider that the grounds taken in the show cause notice dated 17-4-95 for alleging under valuation had not been taken into account. In both the aspects, it is not possible to endorse the view of the ld. adjudicating authority. 9.The appellants' Counsel had re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e instance of the Indian Customs shows that the said vessel had never touched Kobe which raises a serious doubt as to how far this document is authentic. The majority raises the question as to how the declaration at Kobe and shipment from Osaka are reconcilable noting that there is no explanation coming forth. The majority feels that the authenticity of the documents itself is suspect. In these circumstances, the presumption to be raised under Section 139(ii) of the Customs Act could not be raised because the document did not bear any signature, did not come from proper custody and it is difficult to understand why the Indian Customs did not interact with the Japan Customs and obtain authentic copies of the documents from the latter. Merely because the Deptt. offered cross-examination of the steamer agent from whom the export declaration had been obtained and the respondents chose not to avail of that opportunity is no ground for holding that the requirements of Section 139 are satisfied for the purpose of raising the presumption. In order to raise the presumption under the said provision, the basic facts had to be laid. Even though they bear a serial number and stamp of Japan Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustries v. Addl. Collector of Customs, Bombay [1996 (81) E.L.T. 195 (S.C.)] the Supreme Court had observed that the mere comparison of invoices received by the importer with the invoices of imports of same goods by other importers was not conclusive for determination of the question of under-valuation. The Apex Court further observed that stray instances of import at higher value was not to be adopted totally ignoring other attending circumstances. 12.We also find that the charge of related party transactions, family firms, etc., had not been substantiated. The observations that the Singapore firm was controlled by Didwania Family is vague and does not categorically establish the undervaluation. Further, the observations such as "this M/s. Donald Mcarthy Pvt. Ltd. is nothing but a firm controlled by the Didwania Family" when the shipper is M/s. World Resources Pvt. Ltd. a Didwania Firm itself and the consignee is also Shri Navneet Kumar Didwania, Proprietor of M/s. Hanuman Trading Corporation and when the invoice is raised by M/s. Indo Asian Development Inc., all these clearly show that "these are related party transactions" are general and not in the ratio of the Valuation Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant's narration of facts, un-utilised value in the licence was less than the declared value of the goods imported. The Tribunal directed that the appellants be given an opportunity to produce either TRO and another Advance Licence permitting copper wire bars for importation and duty free clearances under Notification No. 203/92 Cus. in respect of the goods of excess value. In case such a licence or TRO is not produced, the excess value of the goods be allowed under OGL if so admissible and duty at the appropriate rate be charged and goods released. If not so admissible, re-adjudication to this limited extent in respect of the excess value of the goods was to be done by the Commissioner of Customs in accordance with law and principles of natural justice. 15.In the present order-in-original; with regard to this aspect of the matter, the adjudicating authority had observed as under :- "Since I have already held that duty free clearances in respect of the 2 TRAs submitted by the importers are permissible to them, out of the first four Bs/entry, duty free clearances may be allowed to the extent of the TRA value in dollars after checking all the debits in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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