8 – Where the value of imported goods cannot be determined under the provisions of any of the rr 5 to 7A, the value shall be determined using reasonable means as provided in r. 8-the residual method – Furthermore, transaction value can be rejected if the invoice price is not found to be correct OVERSEAS THR. ITS PROP. SHRI YASHPAL SHARMA
but it is for the department to prove that the invoice price is incorrect – On facts, both the department as well as the adjudicating authority were not justified in rejecting the import invoice price of the goods as not correct and enhancing the price by straightaway invoking r. 8 when there was no evidence before them to do so – Thus, the tribunal was justified in setting aside the order passed by the adjudicating authority – No error or infirmity in the impugned judgment of passed by the tribunal. [Paras 34.1, 37, 40.2, 41,42]
Customs Act, 1962 – Initiation of proceeding alleging underinvoicing of price of goods imported from foreign country and thereby evading customs duty by the noticee – Reliance upon the unattested photocopies of the first set of export declarations filed by the foreign supplier before the customs authority showing great discrepancy in the price mentioned in the export declarations and the price of the goods as per the import invoices – Justification:
Held: Export declarations relied upon by the Department and earlier by the Directorate of Revenue Intelligence were unattested photocopies – Since those documents were used as a piece of evidence against the noticee, it was necessary that those documents were required to have been proved – Unattested photocopies of the relied upon documents without anyone proving or owning up the veracity of the same would not have any evidentiary value – Very substratum of these documents was subsequently removed when the foreign supplier filed a second set of export declarations before the Hong Kong customs authority showing lower price matching the price of the goods declared in the import invoices – Foreign supplier had paid the penalty for mis declaration of price at the initial stage – There can be no justifiable reason for the department to harp upon the price of the goods as per the initial export declarations by placing reliance on the unattested photocopies of the first set of export declarations to prove underinvoicing for the purpose of evading customs duty – Tribunal rightly held that the value shown in the first set of export declarations could not form any reliable basis for enhancement of the value. [Paras 16, 17] Customs Act, 1962 – s. 108 – Power to summon persons to give evidence and produce documents – Admissibility in evidence of the statement recorded u/s. 108:
Held: Customs officer is not a police officer, and the person summoned and who makes a statement u/s. 108 is not an accused – However, a statement made by a person u/s.108 before the concerned customs officer is admissible in evidence and can be used against such a person – Object underlying s. 108 is to elicit the truth from the person who is being examined regarding the incident of customs infringement, thus customs officer must ensure the truthfulness of the statement so recorded – If the statement recorded is not correct, then, the very utility of recording such a statement would get lost – It is axiomatic that when a statement is admissible as a piece of evidence, the same has to conform to minimum judicial standards – Statement recorded under duress or coercion cannot be used against the person making the statement and the adjudicating authority is to find the same – On facts, statement of director of the supplier firm and proprietor of the importer, recorded u/s.
108 wherein both admitted under valuation – Tribunal noted the factum of retraction of the statement and thus, refused to give credence to such statement – Approach of the tribunal is justified. [Paras 18, 20, 28] LIST OF CITATIONS AND OTHER REFERENCES
Commissioner of Customs, Calcutta v. South India Television (P) Ltd. (2007) 6 SCC 373 : [2007] 8 SCR 95; Rabindra Chandra Paul v. Commissioner of Customs, (2007) 3 SCC 93 : [2007] 3 SCR 319 – relied on.
Surjit Singh Chhabra v. Union of India, 1997 (89) ELT-646; K.I. Pavunny v. Assistant Collector (1997) 3 SCC 721 : [1997] 1 SCR 797; State of Punjab v. Barkat Ram [1962] 3 SCR 338; Ramesh Chandra Mehta v. State of West Bengal, AIR 1970 SC 940 : [1969] SCR 461; Collector of Customs, Madras v. D. Bhoormall (1974) 2 SCC 544 : [1974] 3 SCR 833; Naresh J. Sukhawani v. Union of India AIR 1996 SC 522 : [1995] 4 Suppl. SCR 778; K.I. Pavunny v. Assistant Collector (1997) 3 SCC 721 : [1997] 1 SCR 797; Union of India v. Padam Narain Aggarwal, AIR 2009 SC 254 : [2008] 14 SCR 179; Eicher Tractors Limited v. Commissioner of Customs (2001) 1 SCC 315 : [2000] 4 Suppl. SCR 597 – referred to. OVERSEAS THR. ITS PROP. SHRI YASHPAL SHARMA
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