Customs, Excise and Gold Tribunal - Tamil Nadu
V.K. Vora And Geetha Electronic ... vs Commissioner Of Customs And ... on 13 September, 2001
Equivalent citations: 2002(79)ECC502, 2002(147)ELT924(TRI-CHENNAI)
JUDGMENT
S.L. Peeran, Member (Judicial)
1. Both these appeals arises from order-in-original No. 6/93 dated 23.6.93 by which the Collector of Central Excise has discarded transaction value in terms of declaration filed by Bill of Entry No. 2626/15.11.90 in respect of imported goods namely 5,000 pieces of electronic digital watch modules (Gents) with LCD display and 20,000 pieces digital watch modules (ladies) with LCD display. They have imported the same form M/s. Sangam Trading Company, Hong Kong and declared the CIF value at Hong Kong $ 0.65 per piece for gents model and Hong Kong $ 0.40 per piece for ladies's model. They have also produced REP licence for clearance. However, on investigation and on search of residence of one Shri Dwarkadsa Kanjani certain incriminating documents were found including certain chits and papers. On the basis of these documents and statements recorded from V.K. Vora and that of Shri Dwarkadas Kanjani proceedings have been initiated agist both of the appellants to enhance the value by rejecting the value declared in terms of Section 14 of the CE Act.
2. The Commissioner has confirmed the duty amount of Rs.2,06,107/- against M/s. Geetha Electronic Industry and imposed penalty of Rs.50,000/-, 25,000/- & and Rs. 1 lakh against M/s. Geetha Electronic Industry, V.K. Vora and Shri Dwarkadas Kanjani, respectively.
3. Ld. Counsel submits that on the basis of the same evidence show cause notice had been issued against Umesh Murali Satwani as well as a separate notice to Shri Dwarkadas Kanjani. The same was adjudicated in order-in-original No. 1/93 dated 11.2.93 and 4/93 dated 15.3.93 by the same Ld. Commissioner. The matter came up before the Tribunal nad the Tribunal in the case of Shri Dwarkadas Kanjani has set aside the order by final order No. 1004 & 1005/2001 dated 27.6.2001 by following the ratio of the judgment rendered in the case of Umesh Murali Satwani v. CC & CCE arising from order-in-original No. 4/93 dated 15.3.93 passed by the same Commissioner as reported in 1999 (106) ELT 415. Transaction value cannot be discharged merely on the basis of a piece of paper recovered from the premises of Shri Dwarkadas Kanjani and especially when contemporaneous or higher prices to the same goods have not been produced by the Revenue.
4. Ld. Consultant submits that as the issue is already settled pertaining to evidence and against another importer held by the Bill of Entry in respect of same type of goods, therefor, the ratio would have to be applied and appeals are required to be allowed by granting consequential relief.
5. Ld. DR Shri A. Jayachandran reiterates the Department's contention.
6. On a careful consideration and on perusal of the judgement of the Tribunal rendered in the case of Umesh Murali Satwani (supra) and that of Shri Dwarkadas Kanjani (supra) we notice that the Department had initiated proceedings against the appellant and the noted persons for enhancing the value in respect of imported watch parts as described in the Bill of Entry. The evidence collected in the present case is only chits and papers found in the premises of Shri Dwarkadas Kanjani and statements recorded. The Tribunal held for the purpose of enhancing the value as there has to be evidence of contemporaneous importer of same goods from the same country, quality and quantity and a piece of paper recovered from the premises of Shri Dwarkadas Kanjani cannot be held as a basis for enhancing the value. The finding recorded in para 8 of UMS is extracted:-
8. We have carefully considered the arguments on both sides as well as be records of the case. We find that under Section 14, the valuation to be adopted (where import duty is on the basis of ad valorem) is in accordance with the transaction value as contained in Rule 4 of the Customs Valuation rules. The said rule clearly lays down that the transaction value shall normally (SIC) adopted unless it is found to be fraudulent and not entered into in the normal course of business. We find that the only evidence which is led by the apartment in the order impugned is a piece of paper which was recovered not from the appellant's premises, but from the premises of one his associates who has been claimed by the appellants to be more of an adviser and not a business partner or agent. since there is no evidence available on record to contradict, his averments of appellants therefore we cannot say that this person namely shri Kanjani was actively engaged as an agent or in the import of these assignments. Therefore, we find that any piece of paper received from his premises has to be viewed in this light. We also find that the statements recorded of Shri Kanjani do not directly implicate the consignment. What contained therein is simply a deposition that not only this consignment by other consignments also of similar goods cleared through Hyderabad Custody had adopted a lower valuation for these items as against the values ruling the market at Kong Kong (Sic) being higher as specified therein. If this evidence is to be taken to its logical conclusion, then the department should have further investigated with respect to other imports also cleared through Hyderabad Customs and found different evidence of contemporaneous import for high prices or otherwise. There is nothing on record to show any contemporaneous import at higher price or otherwise than those declared in this Bill of Entry. We further find that if it is the case of the department that those rules of Customs valuation rules which provides for setting aside all the transaction value on the basis of higher value contemporaneous imports are not applicable, then the very evidence is logically inconsistent to that value because in the deposition (SIC) Shri Kanjani, it has been clearly stated that there have been contemporaneous imports. Therefore, the department cannot say that there were no contemporaneous imports during this period. Taking all the facts and circumstance of the case, we find that when a transaction value is to be discharged, it has to be proved to the extent of establishing a preponderance of probability that the declared value is bogus. In view of the weaknesses in the evidence (SIC) abvoe, we are of the conclusion that such a preponderance of probability has not been achieved in this respect in this case. We therefore, give the benefit of doubt to the importer nad find that the order impugned challenging the suit transaction value is liable to be set aside in its entirety. Ordered accordingly.
7. We notice that the issue is already dealt with by the Tribunal in both cited case arising from same type of evidence. As the ratio clearly applies to the evidence on record, there is no reason to defer from the same. By respectfully following the ratio of the above noted judgments, the impugned order is set aside and appeal allowed with consequential relief, if any, as per law.
(Order dictated and pronounced in the open court)