Full Judgment
2. The notice demanding duty is dated 13th April, 1999. The relevant dates for the five consignments in question, as defined in the Explanation below Section 28 of the Act, are 12-6-1997, 6-1-1998, 8-5-1998, 7-10-1998 and 26-10-1998. The notice did not invoke the extended period contained in the proviso under Sub-section (1) of Section 28. Therefore, the notice is barred by limitation for all but the last consignment, being beyond six months from the relevant date.
3. As for this consignment, the contention of the Counsel for the appellants is that there is no evidence of the undervaluation of Petri dishes by the appellant and the only evidence is the statement of Hiten Thakkar. Although this statement was not retracted it is evident from it that it is given under pressure in view of the fact that his father at that time was 76 years old and the goods were under detention. He also relies upon the Supreme Court's judgment in Eicher Industries v.CC 4. In his statement recorded on 12-1-1999, Hiten Thakkar had admitted the price payable for each Petri dish to be 35 US cents per piece and not 20 US cents as declared. He had said that he was paying the difference to somebody in India. It is, we agree, possible that such a statement might have been obtained by threat, coercion and inducement.
However, at no stage before the reply to the show cause notice, three months later, had Hiten Thakkar contended that his statement was anything other than voluntary. That reply contains a general disclaimer that the statement was neither voluntary nor not true, and that he was threatened with the arrest of his father if he did not furnish. We do not think that the retraction contained in the reply are sufficient to overlook the delay of three months in which he was totally silent regarding the voluntary nature of the statement.
5. The Supreme Court, in the judgment relied upon by the Counsel emphasises that in the absence of the circumstances specified in Rule 4(2) of the Valuation Rules it is the transaction value of the imported goods that must be accepted. We do not see how the judgment helps the appellant's case. Transaction value is the price actually paid or payable for the goods. The price that Thakkar said that he paid for the goods is their transaction value, and that is the value that has to be applied.
6. Accordingly, we confirm the demand for duty short-levied on this consignment (for which duty was paid on 26-10-1998) and its liability to confiscation. However, proportionate to the value of these goods in relation to the total value of goods confiscated, we reduce the redemption fine from Rs. 5 lakhs to Rs. 75.000/-. Penalty of Rs. 2 lakhs each has been imposed on Ratilal Thakkar and Hiten Thakkar.
Ratilal Thakkar in his statement has said that his son Hiten was looking after the concern in view of his (Ratilal) age and it is Hiten's statement that has been relied upon for undervaluation. We therefore set aside the penalty imposed on Ratilal Thakkar and reduce the penalty imposed on Hiten Thakkar to Rs. 1 lakh.
7. Penalty, redemption fine and duty to be adjusted against the amount of Rs. 5 lakhs which has already been deposited during the investigation.