ORDER
S.S. Sekhon, Member (T)
1. (a) The appellant imported Crystal and Non-crystal Glasswares from Jeet Enterprise of Hongkong. Bill of Entry was filed being B.E. No. 109094, dated 3-4-2000 for the assessment and the release of the goods wherein the appellants declared the value of the goods as Rs. 4,17,608/- (C.I.F.). Goods were checked by the Customs authorities and the same were found conforming to the declaration made in the Bill of Entry. Customs authorities on suspicion that the goods are undervalued refused to assess the goods and consequently did not release the same. On 5-7-2000, a show cause notice was issued disputing the value of the goods. The customs authorities proposed a valuation therein to the following effect :-
Total amount of invoice (C & F in USD) = $ 9428.36 (C & F) = $ 9534.43 GIF = Rs. 4,17,608.034 GIF
Total ascertained value:
(i) Crystal = $ 29189.218 C & F
(ii) Non-crystal = $ 2174.53 C & F
(iii) Total = $ 31363.75 C & F = $ 31716.59 (CIF) =
Rs. 13,89,186.74 CIF
Extent of under invoicing = Rs. 9,71,578.70
Duty as declared value = Rs. 2,80,156.52
Duty as assessable value = Rs. 9,31,949.82
Attempted duty evasion = Rs. 6,51,793.30
(b) In view of the order passed by the Commissioner of Customs (Port) the Deputy Commissioner of Customs (S.I.B.) vide order dated 21-7-2000 allowed provisional release of 50% of the goods on the basis of the provisional assessment upon payment of the admitted duty in full. Appellant paid the admitted duty in full and took release of the 50% of the imported goods in terms of the aforesaid order of provisional assessment. They filed a reply to the show cause notice disputing and challenging the contention of the department so far as the charge of under-valuation is concerned on the grounds:
(i) In respect of the Crystal Glassware the department relied upon an invoice allegedly raised by J.G. Durand & CIE, France on M/s. India Book Bouse Ltd. of Mumbai Bill of Entry No. was provided by the Customs Department evidencing any importation against the purported invoices Nos. 883499, 883500, 883501 and 883502 all dated 20th September, 1999. Moreover, the said invoices are all dated 20th September, 1999 (even assuming any importation has been made) whereas the importation of the appellant is in the month of June/July, 2000. Admittedly, the said invoices only cover 37 items out of the 59 items imported by the appellant. Therefore, for the rest 22 items of Crystal Glassware the department does not have any evidence. The said documents, i.e. the invoices are unsigned, unauthenticated and are only xerox copies, the originals of which were not furnished for inspection by the appellant. Thus, in such circumstances it was the case of the appellant that the said evidence could not be relied upon by the department for alleging under-invoicing of the imported goods as there was no evidence in the hand of the department which is contemporaneous in nature relating to the identical goods which are higher in value. In such circumstances, the allegation of under-invoicing was grossly unsustainable.
(ii) In respect of the Non-Crystal Glassware the department relied upon the alleged price list of M/s. J.G. Durand dated 15-7-99 and 8-2-2000, that apart the department also relied upon the Invoice No. 754636, dated 22-3-2000 and the proforma Invoice No. 571658100, dated 3-3-2000 allegedly obtained by the department from M/s. Eagle Flask Industries. In respect of the said invoices the department did not provide any Bill of Entry showing actual importation of the goods at the price as indicated in the price list or in the invoice or proforma invoice. However, it was the case of the appellant that in the absence of the actual importation the department could not rely upon the price list or the invoice or proforma invoice. Further, it is the admitted case of the department that the said price list only covers 4 out of 11 types of non-crystal glassware imported by the appellant. The documents in respect of the non-crystal glassware are also xerox copies which are unsigned and unauthenticated. In such circumstances, it was the appellant’s case that such evidence, namely, price list and/or invoice and/or proforma invoice could not be relied upon by the department for alleging under-invoicing of the goods without there being any evidence of importation of the identical goods at a higher price which is contemporaneous in nature.
(c) The adjudicating authority by his order dated 18-12-2000 enhanced the value of the goods as indicated in the show cause notice without considering the case made out by the appellant and also by ignoring to consider the judicial precedents cited by the appellant at the time of personal hearing.
2. After hearing the parties and considering the submissions, it is found :-
(a) A price list and/or an invoice or proforma invoice cannot be relied upon as an evidence to sustain the charge of under-invoicing without there being any evidence of importation of identical goods at a higher price which is contemporaneous in nature. When one reads rules of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988, Rules 5 and 6 thereof stipulate the value of goods to be “sold for export to India and imported at or about the same time as the goods being valued”. Therefore, for imperot valuation, comparable import of the goods is sine qua non. We also follow the following decisions :-
(i) Laxmi Colour Lab. v. Collector of Customs – reported in 1992 (62) E.L.T. 613 (Tri.) 1st Head Note & Para-5 @ P-615.
(ii) Sai Impex v. Collector of Customs – reported in 1992 (62) E.L.T. 616 (CEGAT Sp. Bench “A”) Last Head Note & Para-12 @P-619.
(iii) Kishandas & Sons v. Commissioner of Customs, Mumbai reported in 1999 (112) E.L.T. 227 (Tri.) Last Head Note paragraphs 5 and 6 @ pages 229 and 230.
No evidence of actual imports as supported by duty paid Bill of Entry copies/particulars has been adduced in this case. Valuation at higher levels, therefore, cannot be sustained.
(b) Photocopies of documents which are unsigned and unauthenticated cannot be relied upon as evidence and no charge of undervaluation can be sustained on the basis of such evidence. The ratio of the following decisions binds us to conclude that no material exists to accept the values as proposed in the notice :-
(i) V.K. Impex v. C.C. (Port), Kolkata reported in [2002 (141) E.L.T. 514 (T)] = 2002 (51) RLT 846 (CEGAT-Kol).
(ii) Overseas International v. C.C., Chennai reported in [2001 (127) E.L.T. 599 (T)= 2000 (41) RLT 101 (CEGAT) @ Para 7.
(iii) Chandrakant H. Sanghvi v. C.C., Nava Sheva reported in [2000 (121) E.L.T. 788 (T)] .= 2000 (41) RLT 104 @ Para 2.
(c) The department, in any case, does not have any evidence in respect of 22 items out of the 59 items of Crystal Glassware and 11 items out of the 15 items of non-crystal glassware imported by the appellant. Hence, the department cannot enhance the value on pro rata basis. We follow the decision cited as under :-
(i) Samrat Enterprises and Anr. v. Commissioner of Customs (Import), Mumbai reported in [2000 (122) E.L.T. 423 (Tribunal)] = 2000 (41) RLT 506 (CEGAT) – Para 8.
(d) No finding of mens rea has been arrived, nor any evidence of extra remittance is made out. It is only a case of provisional assessment being finalised by loading of declared value. Hence, imposition of penalty not permissible. The ld. Counsel has correctly relied upon the decision which is as under :-
CC., Madras v. Aradhi Associates reported in 2001 (129) E.L.T. 120 (CEGAT).
(e) The adjudicating authority has failed to quantify the duty and not having done the same penalty could not be imposed as held in Daylight Plastic Industry v. CCE, Surat reported in 2000 (119) E.L.T. 592 (Tribunal) = 2001 (95) ECR 308 (CEGAT) Para 6.
3. In view of the findings hereinabove, the impugned order is set aside and the appeal is allowed.