S.K. Gaule ORDER
Ashok Jindal, Member (J)
1. The appellants namely M/s. Agarvanshi Aluminium Ltd. (Importer) and Shri Bharat Bhushan Agarwal (Director of the Importer) and Ehsan A. Gadawala and Shri Purshottam Parolia (Indenter) have challenged the Order-in-Original No. 164/2009-CC(I) JNCH passed by the Commissioner of Customs (Import) dated 15-12-2009. The brief facts of the case are that the importer imported aluminium scrap during the period July, 2004 to June, 2006 through various ports located at Nhava Sheva, Nagpur, Hyderabad, Kandla and Chennai. The total quantity of aluminium scrap imported was 3889.998 MTs and the value declared was Rs. 23,84,81,992/-. The DRI, which investigated the imports, came to the conclusion that the appellant had misdeclared the value of imports and the actual value of imports amounted to Rs. 28,40,85,648/- and accordingly issued a show cause notice dated 31-12-2007 demanding differential duty of Rs. 1,40,76,571/-. This demand of duty was based on the evidence unearthed from the indenting agent's premises involving differential duty of Rs. 48,80,774/-, contemporaneous value of imports involving duty of Rs. 42,06,213/- and on the basis of LME prices minus permissible discount involving a duty of Rs. 49,89,584/-. The case was adjudicated vide the impugned order and the learned Commissioner confirmed the duty demand of Rs. 1,40,76,571/- under Section 28 of the Customs Act, 1962, interest thereon under Section 28AB of the Act and imposed equivalent penalty on the importer under Section 114A of the Customs Act and imposed penalties of Rs. 1,00,00,000/- each on Shri Bharat Bhushan Agarwal, Partner of the importing firm and on Shri Purshottam Parolia, one of the indenting agents and a penalty of Rs. 5,00,000/- on Shri Ehsan Gadawala, another indenting agent. The importer, his partner and the two indenting agents are in appeal before us.
2. The ld. counsel for the appellant Shri S. Jaikumar submitted that the demands towards differential duty is based on computer printouts recovered from the premises of the indenting agent (Shri Purshottam Parolia) cannot be relied upon as per Section 138C of the Customs Act, 1962. As per the said provisions, the computer printouts can be taken as evidence only subject to fulfilling the terms and condition specified in the section and same has not been complied with in the instant case. To support this contention he relied upon the decision of Premier Instruments and Controls Ltd. - MANU/CC/0219/2004 : 2005 (183) E.L.T. 65. He also submitted that during the course of investigation, panchnama was drawn. Panchnama was typed and thereafter item No. 103 added in handwriting, which shows the description that four computer units without any mouse, keyboard/monitor and other accessories i.e. peripherals is mentioned but the report of Directorate of Forensic Science, Gujarat State mentions that there were 5 CPUs. Therefore, the contents of panchnama were also doubtful. Accordingly, printouts cannot be relied upon and demand is not sustainable.
3. He further submitted that for the demand based on contemporaneous import, the value of imports which were found in the computer printouts and value of imports declared in the bills of entry are much higher than the value of the contemporaneous imports. As per provision of Customs Valuation Rules, lowest value has to be taken for arriving at the transaction value and if mat is taken there is no undervaluation. As far as merits are concerned, it is further submitted that based on the publication of minerals and metal review, which is a publication and report on imports of aluminium scrap at various ports in India based on the import data provided by the department, a comparative data has been prepared in respect of the imports of the appellant. The w........