COMMISSIONER OF CUSTOMS (IMPORT) Vs. WINGS ELECTRONICS

JUDGEMENT

(1.) WE have heard the learned Counsel for the parties at length and have gone through the records minutely, including the material which was produced and relied upon by the Department in confirming the arrears of the customs duty in respect of various consignments as well as confiscation of certain material. We have also gone through the Order -in -Original passed by the Commissioner describing the evidence, imposing duties, redemption fine and penalty etc. as well as the order of the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as "the Tribunal") which has set aside the order of the Commissioner after re -appreciating the entire evidence. We find that the Tribunal has given cogent reasons in arriving at the conclusion that the Department could not produce any credible evidence or ante -proof to the evidence in the show cause notice. We may only state this position in summary manner in respect of each firm. The Commissioner in his Order -in -Original confirmed the demand of customs duty amounting to Rs. 96,71,688/ - in respect of the goods as per Chart II Part A and B of the show cause notice in respect of undervaluation of goods imported from M/s. Pearl Industrial Company by relying upon the statement of Mr. K.M. Puri and unauthenticated copies of the trade declarations allegedly produced by Mr. K.M. Puri. The Tribunal has set aside the demand by giving the findings that there is no corroborative evidence and the role of Mr. K.M. Puri is questionable. There was apparent conflict in the status of Mr. Puri wherein at one stage he projects himself to be the partner in M/s. Pearl Industrial Company, whereas thereafter he states that he is merely an interpreter. The Panchnama dated 9 -11 -1997 raises a presumption against Mr. Puri and since search was completed merely in 90 minutes, he being an impartial and biased witness, his statement cannot be relied upon, more so when no opportunity to cross -examine was granted to the assessee despite requests. The trade declarations as supplied by Mr. Puri were not authenticated copies. No invoices showing a higher amount were ever produced by Mr. Puri even though he volunteered in the investigations. Cross -examination of Mr. Puri was imperative.

(2.) THE Commissioner in his Order -in -Original confirmed the demand of customs duty amounting to Rs. 14,62,118/ - as per Chart II of the show cause notice in respect of undervaluation of goods imported from M/s. Kieule Enterprises by relying upon the investigation report of Hong Kong Customs Authorities and on the basis of the alleged invoices. The Tribunal has set aside the demand by giving the findings that the documents are not authentic. Letter does not indicate whether the two invoices allegedly received by the Department showing the higher amounts, were signed or not. The date of alleged invoice is subsequent to the date of shipment indicated in the bill of the lading. The invoices of the importer bear notification stamps of Bank indicating processing of payments. However, no such endorsement can be found in the alleged invoices obtained by the Department. No material was even produced by the Department to indicate payment by the assessee importer on the basis of such alleged invoice showing higher amounts.

(3.) IT appears that the allegations were very serious but no cogent material was collected to substantiate these allegations and that is the result of shoddy and slip shod investigation. In normal course, we would have remitted the case back for further investigation. However, it is a matter of the year 1997 and it seems that such an exercise may be futile. Moreover, we may record at this stage that during these proceedings the Respondent herein had paid certain amounts to the Department. Learned Counsel for the Respondent, on instructions from his client, who is present in the Court, makes a submission at the Bar that the Respondent will not be claiming any refund of those amounts. Having regard to the above, we dismiss the appeal as no question of law is involved.