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(i). Silicon Graphics System (India) Private Limited Vs UOI 2006 (204) ELT 247 (Bom.)

(ii). Shripra Alloys Ltd Vs CCE, Nagpur. 2007 (220) ELT 297 (Tri- Mumbai)

(iii). Novamet Industries Vs UOI 2008 (227) ELT 363 (All) 4.2. Dr. PrabhatKumar submits that Commissioner devised his own erroneous means to say that the goods are identical by going beyond the scope of SCN; he has travelled beyond the scope of SCN, in gross violation of the principles of natural justice, as far as concluding (Para- 60.9) that the goods declared were branded at the time of import and it was very obvious that the goods are identical. Commissioner has erred in upholding the depositions made in the retracted statements despite admitting (in para-63.3.2) that.....I find from the case records that goods worth about Rs.1.39 crores were seized on 31 01-05 and 28.2.2005 which remained locked out of business till end of July 2005. This might have put pressure on the owner of the goods; after admitting the kind of pressure that was exerted by DRI for extracting the desired statements, Commissioner has fallen back and rejected the retractions filed by Mr. Satish Luthra on 3.2.2005 and 8.2.2005 in respect of statements recorded on 31.1.2005 and 1.2. 2005; statement recorded on 7.3.2006 was retracted by Mr. Satish Luthra on 8.3.2006; though this statement was recorded after release of the seized goods - released on 29.7.2005 -- but there are a multifarious forms of exerting pressureother than blocking the goods from business mainstream.

(x).Learned Commissioner erred in imposing penalty on Proprietors when the penalty has been imposed on his proprietary concern as held in V.K. Enterprises Vs CCE, Panchkula - 2010 (249) ELT 462 (Tri-Del) andJayantibhai J. Patel Vs CCE, Ahmedabad - 2009 (244) ELT 140 (Tri. Ahmd); in the absence of mens reapenalty cannot be imposed Akbar BadruddinJiwaniVs Collector - 1990 (47) ELT 161 (SC)

5. Learned Counsel, for that the appellant Shri Sushil Goel, Appeal No. C/786/2010, submits that penalty of Rs.2.50, 000, has been imposed on him under Section 112 (a) of the Customs Act, 1962, though a separate penalty has been imposed upon the firm M/s Communications Trade Links and 8 others firms controlled by Shri Satish Luthra as well as on other co-noticees; appellant has given no objection and had not made any entry in the bill of entries and therefore, Sections 14, 14 (1) & 14 (1A)of the Customs Act,1962 and Customs Valuation (Determination of Price of Imported Goods) Rules 1988, are not applicable in the present case qua him; entire case has been made against the appellants on the basis of statement of Satish Luthra, who is quoted to have stated that he remitted the differential of the actual price and the under invoiced price declared before the Indian Customs to the foreign supplier in cash through Hawala Operators residing in Karol Bagh, Trans Yamuna in Shahdara and in Ashok Vihar; he did not know the exact names of these Hawala operators; he arranged Hawala amount by selling the undervalued and misdeclared imported goods against the actual price in cash; the statement of the appellant was recorded on 23.03.2006; prior to recording of his statement there was no material on record; he was not implicated by anybody else in whole case either by the importer or by the persons whose companies have been used by the importer i.e. Luthra Brothers; there is no documentary evidence at all in the show- cause notice, whereby the appellant can be connected with the alleged contravention made by the importers; neither the appellant had made any payment on behalf of any person resident abroad nor he had received any payment from any person on behalf of person resident abroad or in India; statement was retracted by the appellant at the first available opportunity; during the cross-examination conducted on 05.01.2009, Shri Satish Luthra specifically stated that he never met the appellant and has not send any money through the appellant; He relies upon to state that in case of retracted statements the burden is on the department to prove.

(i). CC (Import), Mumbai VsPundrickRavindraTrivedi 2015 (322) ELT 812 (SC)

(ii). Sushil Agarwal Vs CC (Import), Mumbai 2013 (283) ELT 377 (Tri-Mumbai) affirmed by Hon'ble High Court 2012 (293) ELT 633(Bom)

(iii). Shri Ganesh Overseas Vs CC, Ahmedabad 2002(150) ELT 145 (Tri-Del).

8.3.Learned AR submits on the argument /claim of Retraction, of statement of Shri Satish Luthra, that the counsel for Satish Luthra could not produce any copy of retraction; all the statements, recorded at various intervals, are written by himself in Hindi; such statements running into pages cannot be written under any force or threat. It was held that retraction should be addressed to the authority who had recorded the statement; any other retraction would not be valid and that even if a statement is retracted it is still admissible, in the following cases.

19.We find that the entire case of the Department is built upon the statements of different persons involved and most of the statements have been retracted. Once, the statements have been retracted, the onus lies on the Department to prove that the statements are correct. We find that the same has not been discharged. We further find that other than statements, no evidence documentary or otherwise hasbeen put forth by the Revenue to substantiate the allegation of under-valuation. No samples were drawn and no enquires were made. As discussed above, no reasons for rejection of the assessable value of the goods, more so looking in to the fact that the goods have been once cleared by Customs after due process of examination and assessment, as declared by the importers have been given. The respective Bills of Entry have not been challenged at appropriate forum.Connivance/collusion of assessing/examining officers, if any, have not been alleged/established. No enquiries relating to the existence of higher contemporaneous values have been done. Retractions have not been challenged on concrete evidence and have been brushed aside as routine and afterthought. In some cases, cross- examination has not been allowed and wherever it was allowed, the averments thereon have not been taken into consideration. Show Cause Notice has been issued much after the relevant date; SCN does not invoke proviso to Section 28(1) of the Customs Act, 1962 and the impugned order also does not discuss and substantiate such invocation. Therefore, the impugned SCN is barred by limitation also. Thus, we find that the impugned order suffers from various lacunae and thus is liable to be set aside. When the charge of under-valuation is not established, no case is made out for imposition of redemption fine, penalties and demand of duty from any of the appellants involved.