Document Fragment View

Matching Fragments

5. Countering the arguments, Mrs. Krishna A. Mishra, learned Senior Departmental Representative, submitted that the documents relied upon by the Department are not public documents as are dealt with in Section 78 of the Indian Evidence Act; that only the Customs authorities can get these documents through proper channel; that the Department obtained these documents from the Italian Customs authorities through the Directorate of Revenue Intelligence through the High Commission of India, London; that there is a vast difference noticed between the value as per documents relating to export and the invoice price as per the manufacturer's invoice submitted by the appellants; that the argument of the Appellants that the documents are not authenticated is not tenable since the source of the documents obtained are the records of the Italian Customs Authorities and they have been obtained from the agency authorized by the Government of India to conduct intelligence work overseas, that is the Directorate of Revenue Intelligence (DRI); that DRI has stated that they had received the documents from Central Commando of Financial Police, Italy; that all the documents also bear the seals of Italian Customs; that these documents contain details which are identical to the documents presented at the time of import by the Appellants; that the matching of details clearly bring out the fact that the documents acquired officially by the Department represent the impugned goods imported by the Appellants. She relied upon the decision in the case of Magraj Patodia v. R. K. Birla, AIR 1971 SC 1295 wherein the Supreme Court has held that the fact that a document was procured by improper or even illegal means will not be a bar to its admissibility if it is relevant and its genuineness is proved. "But while examining the proof given as to its genuineness the circumstances under which it came to be produced into Court have to be taken into consideration." She also relied upon the decision in the case of Ram Khazana Electronics v. CC, Air Cargo, Jaipur, 2003 (156) ELT 122 (Tri) wherein the Tribunal has found that the Commissioner was fully justified in enhancing the assessable value on the basis of export declarations obtained by the DRI from their counterpart through legal and diplomatic channel and as the entries in the said declarations tally with the name of the Party, airway bill number and description of the goods though there was difference in Tariff classification. Reliance has also been placed on the decision in the case of Diary Den (India) Pvt. Ltd. v. CC, Mumbai, 2003 (54) RLT 692 (CEGAT) wherein the Tribunal has held that "the fact that the precise Authority of the Indian Government to whom this document was handed over by the Italian Customs has not been established should not by itself be a bar against considering it to be authentic."

8. We have considered the submissions of both the sides. The case of the Revenue is that the impugned goods manufactured in Italy and USA were supplied to M/s Paragan Singapore who in turn had sold the goods to the Appellants and that the value of the goods declared by the Manufacturer in the Export Declaration filed by them with their respective Customs Authorities was higher than the price at which M/s. Paragan Singapore has sold the goods to the Appellants or mentioned in the Manufacturer's invoice subsequently produced by the Appellants. On the other hand, the Appellants have contended that the value was declared by them on the basis of contract price and they have submitted the manufacturer's invoices and packing list and other material in support of the price declared by them. They have also emphasised the fact that the documents procured by the Revenue do not bear any signatures and are photocopies which are not even attested and accordingly the assessable value cannot be enhanced on the basis of such documents. Both the learned Advocate and learned Senior Departmental Representative have referred to various decisions of the Tribunal in support of their submissions. We observe that the learned Advocate has rightly contended that the original copies of the Export Declarations filed by the manufactures have not been furnished by the Revenue to the Appellants and there is nothing on record to show that the price declared therein is correct as no statement of the manufacturers concerned has been given to the Appellants or brought on record. In the case of V.K. Impex, supra, the Tribunal did not uphold the Order enhancing the value of the imported goods on the basis of photocopies of the unsigned documents though as per the report given by the U S Customs, foreign supplier had accepted the payment in US dollars, by holding that the authenticity of the photocopies of the documents is suspected when neither the originals have been produced nor the signatures of the officers making enquiries are appearing on the photocopies of original." The Tribunal also observed in V. K. Impex case that "the Appellants have produced on record the evidences showing importation of the contemporaneous imports at the same value at which the Appellant had imported the goods." In the present matters also the Appellants have submitted the contemporaneous imports which show that the prices at which they have imported the goods are not abnormal but are consistent with the prices of the contemporaneous imports. In fact the Commissioner himself has mentioned in one of the impugned Order that the contemporaneous evidences are equally titled on both sides. There is no challenge of this finding in the impugned Adjudication Order by the Revenue. Once the Commissioner finds that the contemporaneous evidences support the prices declared by the Appellants, the said evidence cannot be discarded and the value cannot be enhanced on the basis of other evidence. We also note that the Adjudicating Authority has also mentioned in the said impugned Order that the Appellants have a genuine insurance cover issued ten days before the departure of the ship from the point of loading which the Department had not questioned to be incorrect and that the foreign supplier had a signed invoice from the US supplier. We find substantial force in the submissions of the learned Advocate that the Reverue has not brought any concrete material to prove that the invoices submitted by them are not genuine. The sole basis for enhancing the assessable value is the export declarations obtained by the Revenue from Italian Customs/US Customs of which original copies have not been brought on record. In a similar facts, the Appellate Tribunal has held in the case of South India Television (P) Ltd. p. CC, 2001 (136) ELT 243 (Tri) as under:

"....we find that the only basis for enhancing the assessable value of the imported goods is the export declaration furnished by the importers/suppliers at Hong Kong. The Appellants have strongly contended that it is the photocopies of the said declaration and the signature bearing on them do not reflect upon the Authority of the persons signing them and as such the same cannot be made the basis for rejecting the transaction value. As against this, the Commissioner has observed that the said export declarations have been obtained through Hong Kong Customs and as such he has rejected the Appellants' contention that this export declaration being only Xerox copies cannot be considered as authenticated documents. We agree with the submissions: of the Appellants that these Xerox copies of the said documents, even though procured by the Hong Kong Customs and forwarded to the Commission for India in Hong Kong which in turn has forwarded them to India, will not make then genuine documents. This was so held by the Tribunal in the case of Indian Optics Pvt. Ltd. v. Commissioner of Customs, New Delhi, 2000 (123) ELT 1022 (Tri): 2000 (123) ELT 381 (CEGAT)".