PER : DR. D.M. MISRA

These appeals are filed against Order-in-Appeal No. 431 to 433/2013 CUS(B) dated 21.11.2013 and Order-in-Appeal No. 434 to 437/2013 CUS(B) dated 25.11.2013 passed by the Commissioner of Customs (Appeals), Bangalore.

2. Briefly stated the facts of the case are that on the basis of intelligence that the appellant M/s. Multitek Engineers, a proprietorship concern and its proprietor Shri Tukaram Rao Devaraja, imported rubber belts and PVC conveyors for textile, granite, printing and other industrial consumers from overseas suppliers situated in China, Singapore and Korea by resorting to undervaluation of the same, investigation was initiated by DRI by conducting search and recording statements of various persons connected with the imports. On completion of the investigation, a show-cause notice was issued to them on 28.06.2012 proposing to enhance the declared assessable value from Rs.14,55,905/- to Rs.16,47,074/- in case of imports through Air Cargo Complex, Bangalore, demanding differential duty of Rs.49,351/- and another show-cause notice dated 28.06.2012 was issued for enhancement of declared assessable value from Rs.13,29,330/- to Rs.16,36,115/- in case of imports from ICD, Bangalore, demanding differential duty of Rs.82,368/- . In addition, proposals were made for imposition of penalties on individuals. On adjudication, redetermined value in each of the said imports had been confirmed along with differential duty with interest and penalty. Also, penalties were imposed on Shri Tukaram Rao Devaraja, Shri Sanjeev Yadav and Shri Ratan Das. Aggrieved by the said orders, the appellants have filed appeals before the learned Commissioner(Appeals). The learned Commissioner(Appeals) rejected the appeals of M/s. Multitek Engineers, Mrs. Tukaram Rao Devaraja and Mr. Ratan Das; however, he allowed the appeal filed by Mr. Sanjay Yadav.

Hence, the present appeals.

3.1. At the outset, the learned advocate for the appellants assailing the impugned orders has submitted that the entire case has been built upon only on the basis of statements recorded under Section 108 of the Customs Act, 1962 which were retracted. These statements cannot be relied upon as the Department has not followed the provisions of Section 138B of the Customs Act, 1962. Besides, the statements of co-accused cannot be relied upon without sufficient corroboration. Also, he has submitted that there is no evidentiary value of the statements in absence of an opportunity to cross-examine the witnesses whose statements are relied upon in passing the order. Further, he has submitted that statements recorded by the Enforcement Directorate under FEMA, 1999 cannot be relied upon to establish the present case for undervaluation which is alleged to be in contravention to provisions of Customs Act, 1962. The Department also though listed the comparable imports in the annexure to the show-cause notice of other importers, it cannot be considered as contemporaneous imports since these imports relate to the period 2008 whereas the present imports by the appellant are during the period September 2009 to March 2012. Further, these imports neither relate to the same country of origin for a particular consignment nor do have any relation to the same item of import. In fact, Annexure-A to the show-cause notice also does not provide the description of the goods imported by the appellant; thus, there is no comparison between the goods imported by other importers with that of the imports made by the appellants. Further, the Annexure-A to the show-cause notice does not rely on contemporaneous value of imports but redetermined the value by merely enhancing the declared value in an arbitrary manner increasing it by 25%. He has further submitted that the notice itself accepts that the Department could not locate imports of any similar or identical goods to invoke provisions of Rules 4 or 5 of the Customs Valuation Rules, 2007 and by adopting the residual meth