FORBES PATVOLK Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THIS appeal is directed against the Order -in -Appeal No. C.Cus. 471/2001, dated 26 -7 -2001 by which the Commissioner (Appeals) has upheld the order of the lower authority on the ground that since no documentary evidence by means of vessel's record has been produced, he found no reason to interfere with the order of the lower authority and therefore rejected appeal filed by the appellants/assessees.

(2.) APPEARING on behalf of the appellants ld. Counsel Shri R. Ganeshan submits that they were not allowed to take the imported cargo as ship stores directly to the vessel which was ready to sail to a foreign country. Therefore, by way of compulsion the katcha Bills of Entry which were filed by them were regularised and they had to pay the duty on the cargo which was meant for crew and passengers in the vessel. The CHA had rushed to the Harbour Port to hand over the ship stores to the vessel. Even the departure of the vessel was delayed by half an hour because of the formalities, though no customs authorities could be contacted and no records could be maintained with the customs authorities for putting the ship stores to the ship under the supervision of the customs officers who would normally board the vessel. He further submits that he got the E -mail confirmation stating that the ship stores have been received by the Master of the Ship but the department has rejected the refund on the ground that it is only E -mail confirmation which is also not signed by any authority. Ld. Counsel relies on the judgments rendered by the co -ordinate Bench, Bombay rendered in the case of Rahul Associates v. CC, Mumbai reported in 2002 (142) E.L.T. 126 (Tri. -Mumbai) wherein it is held that E -mail message which was sent without disclosing its source or whether hard copies of message supplied to assessee, an unsubstantiated and clumsy evidence to support charge of undervaluation, worthy of no reliance. Whereas in their case the sender of the message and the receiver of the message are existing and such E -mail message has to be accepted as evidence. Ld. Counsel also relied on the judgment rendered by WRB, Mumbai in the case of CC, Mumbai v. Ridhi Sidhi Furniture Fitting Co. reported in 2002 (144) E.L.T. 444 (Tri. - Mumbai) wherein the evidence of E -mail was rejected on the ground that the name of the sender of the E -mail was blocked in the copies supplied to importer and the address of person sending the quotation was also not known. It was such a document wherein significant portions of what was considered to be an evidence was chopped off and then asking importer to rebut that evidence. Whereas in the instant case the E -mail has been sent by the Manager of the Vessel from the ship, only, on internet and such evidence by mentioning the name of the sender and the receiver and the contents fully known should be accepted as evidence argued the ld. Counsel. He further submitted that the same Manager (Port Operations), Holland Americaline has sent a certificate that 8 pkgs. containing 94 kgs. ship stores/fresh strawberries imported from Singapore and 1 plt. Containing 345 kgs. of ship stores/Frozen Dover Sole (fish) imported from Amsterdam under AWB No. 61892455344, dated 1 -3 -2000 and AWB No. 05764200500, dated 1 -3 -2000 respectively. They were received by the Master of the Vessel M.V. Rottardam as ship stores during her stay at Chennai on 20 -3 -2000. Both the consignments arrived on 1 -3 -2000 and were cleared by kutcha Bills of Entry and were subsequently regularised by regular Bills of Entry Nos. 5406, dated 9 -3 -2000 and 5407, dated 9 -3 -2000. Since it was a perishable cargo and it was required to be boarded on the vessel as ship stores, the same has been cleared by paying the customs duty and that customs duty only they have asked for refund, which has been rejected by both the lower authorities.

(3.) APPEARING on behalf of the Revenue, ld. DR Shri C. Mani submitted that the appellants did not produce any documentary evidence except E -mail message which, according to both the lower authorities, could not be taken as an authenticated documents. He, further, submitted that even during the personal hearing also the appellants/assessees were asked whether they could produce any record of the vessel to show that the goods were received on board, the appellants have produced only a letter from the Manager (Port Operations), Holland America line stating that the subject goods were received by the vessel during her stay on 2 -3 -2000. This letter cannot substitute the vessel documents to show the receipt of the goods on the board and therefore, since no documentary evidence by means of vessel records have been produced and there was no such supervision from the Customs officers that the ship stores have been put on board of the vessel, the impugned order passed by the lower appellate authority is required to be sustained. As regards the judgments relied by ld. Counsel, he submits that the facts in these cases were that the department wanted to enhance the value of the imported goods on the basis of the E -mail copy received in which the names and addresses of the sender was blocked out and the address of the person sending quotation was also not made known, such evidences were held to be not admissible to charges of undervaluation by the department. Since the facts in both the judgments are different from the facts of the present case, these judgments are not relevant to the issue involved and are not applicable. He, therefore, submitted that the appeal may be rejected by upholding the decision of the Commissioner (Appeals).