INDIA BUSINESS WORLD - JUNE - JULY - 2007
The Month that was ...

SUPREME COURT PUTS ONUS OF PROOF FOR UNDER-INVOICING ON CUSTOMS

THE Supreme Court has ruled that Customs authorities cannot outrightly reject invoice of imported goods on charges of under-invoicing. The onus of proving under-invoicing lies with the department and this should be backed by date on the prices of contemporaneous imports of like goods.

A bench comprising Justice SH Kapadia and Justice BS Reddy said:"Casting suspicion on invoice produced by the importer is not sufficient to reject it as evidence of value of the imported goods. Under valuation has to be proved. If the charge of under-valuation cannot be supported either by evidence or information about comparable imports, the benefit of doubt must go the importer." "If the department wants to allege under-valuation, it must make detailed inquiries, collect material and also adequate evidence. When under-valuation is alleged, the department has to prove it by evidence or information about comparable imports. For proving under-valuation, if the department relies on the declaration made in the exporting country, it has to show how such declaration was procured," said Justice Kapadia.

The apex court said that the department's rejection of the invoice produced by the importers must be accompanied with cogent reasons. This was because the invoice price forms the basis of the transaction value.

Before rejecting the transaction value as incorrect or unacceptable, the department has to find out whether there are any imports of identical goods or similar goods at a higher price during the period of import. Unless the evidence is gathered in that regard, the question of importing Section 14 (1A) the Customs Act does not arise, court said. Section 14 (1A) deals with the determination of valuation of goods for the purposes of assessment.

In the absence of evidence, the invoice price has to be accepted as transaction value. Invoice is the evidence of value, noted the court. However, once the department discharges the burden of proof to the extent by producing evidence of contemporaneous imports at higher price, the onus shifts to the importer to establish that the invoice relied on by him was valid, court said.

The court dismissed the appeal of Kolkata's commissioner of customs. The department had demanded imposition of differential duty as well as fine and confiscated goods on charges of under-voicing by an importer -- South India Television (P) Ltd. The company had imported consignments of ceramic capacitors and diodes from Hong Kong. The department had issued show cause notice seeking reasons as to why the value of the consignments in question should not be enhanced alleging its under-voicing in order to evade huge government revenue.