CESTAT | Electronic sources of evidence cannot be used as proof unless they satisfy conditions of S. 138-C of Customs Act for proving undervaluation of goods

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): A two-member Bench of Justice Anil Choudhary, Member (Judicial) and Justice Bijay Kumar, Member (Technical) allowed the appeals of the appellate companies Indo Silicon Electronics Pvt Ltd and Vortex Industries Pvt Ltd with H S Chadha (managing director) alleged under undervaluation of tyres for both the companies.

In the instant case, the goods (tyres and tubes) of the appellant were seized under Section 110 of the Customs Act, 1962 in lack of RSP Stickers and failure of the appellant to produce the legal documents for their possession. It was also found from the mail exchanges of the appellant that there were different sets of prices for the same goods as shown in the two sets of commercial invoices which could be further negotiated with the suppliers. And thus accordingly the Adjudicating Authority charged the appellant for undervaluation of the goods.

The counsel for the appellant, Aakarsh Srivastava submitted that the prices reflected in the emails were only quotations and not final prices and thus cannot be relied upon. Further, the department did not investigate the correctness of the prices and relied on emails that were not admissible evidence under Section 138C of the Act. Moreover, the department failed to bring any evidence of contemporaneous imports or NIDB (National Import Database) to show undervaluation nor there has been any proof that the commercial invoices accompanying the bills of entry do not reflect the actual transaction value. He further contended that the impugned order did not mention the rule of the Customs Valuation Rules, 2007 applied to arrive at the predetermined value. So the whole case is on assumptions and undervaluation could not be proved to make the appellant not liable to pay any penalty.

However, the counsel for the respondent, Rakesh Kumar contended that Rule 3 of the Customs Valuation Rules, 2007 has been used for the rejection of the declared value. He further contended that the appellant had accepted the prices on the emails as the true prices for the assessment of imports of Infinity brand tyres without any objection. Moreover, when the appellant himself admitted the undervaluation and the existence of the parallel quotations, it need not be proved by the department, therefore, making him liable.

The Tribunal, therefore, held that the allegations of confiscation of goods demand of penalty, and denial of SAD (Special Additional Duty) exemption cannot stand on the appellate company. Further, the department miserably failed to prove undervaluation on the basis of transaction value so it could not be established against the company. Therefore, the appeals were allowed with consequential benefits for the company and any amount appropriated by the impugned orders of the department stood revoked.[H S Chadha v. Commr.of Customs (Preventive), Customs Appeal No. 51768 of 2016, decided on 09-01-2020]

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