The Hindu Business Line : e-mail loses out

BILL Gates once stated that like almost everyone who uses e-mail, he receives a tonne of spam every day. "Much of it offers to help me get out of debt or get rich quick. It would be funny if it weren't so exciting," he added cheerfully.

For e-mail lovers, however, the Asha Amee Enterprises case that came up before the Bangalore tribunal may not be exciting because the decision in the dispute trashed the value of e-mail evidence.

Asha had imported 2,000 VCD players from China, declaring the assessable value as Rs 414 per piece. Customs officials felt that the amount was too low and so crosschecked with an e-mail from UAE where the rate was $23; so, the value for Asha's consignment was fixed at Rs 1,045.

Asha was not happy; it said that the Department could not enhance the value on the basis of e-mail, since it was not contemporaneous evidence.

"It is neither invoice nor proof of import by another importer in India from the same country, place and time," said Asha.

But the taxman pointed out that the e-mail was from a dealer of the same goods, and so the communication had value as contemporaneous evidence.

The tribunal heard both the sides and observed that e-mail could not be considered as contemporaneous evidence; and that it was "a mere offer on the e-mail and not a negotiated price emanating from the same country - China, in respect of same models for the same period."

The decision follows the ratio of an earlier case, Plethico Pharmaceuticals, where it was held that the Internet offer-prices are not reflective of actually transacted prices."Diamonds are forever. E-mail comes close," said June Kronholz. That'd be an exaggeration if we were talking of e-mail's evidentiary value.

Adjusted Web site info

Competent Business Machines imported old and used photocopiers, declaring a value of $73,170. But the taxman enhanced the value, issued show-cause notice and confiscated the consignment. The adjudicating authority determined the value at $1,30,050. Competent said that at the time of import it had filed a chartered engineer's certificate for the value; and that the officials were placing reliance on contemporaneous import of second hand photocopiers that were not comparable to the condition of the items in question.

The order of the New Delhi tribunal points out that the adjudicating authority had relied upon data from a Web site "in respect of some other model of the imported photocopier and then compared with the imported photocopier". The adjudicating authority's order had said that model 4080 imported by Competent was an advanced model of 4050 for which data was collected from the site.

The tribunal noted that the adjudicating authority took into consideration the import price of model 4050 as contemporary import of model 4080 and allowed 10 per cent discount for bulk quantity.

The tribunal ruled that since there was no data available on the Web site in respect of 4080 model, comparison of data of another model is not reliable evidence to enhance the value of the imported goods. Thus, the decision went against the Department.

A quote of Sunil Gavaskar, though about playing, has relevance: "Comparisons are really no good in sport, especially if it is a comparison between different eras and generations, for there are so many variables that come into play, starting from the quality of the opposition to playing conditions."

Video-link from Paris

The latest issue of Consolidated Commercial Digest carries a gist of what happened in the Court of Appeal, UK, with regard to the Polanski vs The Conde Nast Publications Ltd case. The question was whether a witness can give evidence from abroad by video link to avoid the risk of arrest. The court said that its general policy was to discourage litigants from escaping the normal processes of the law. By ruling thus, it set aside an earlier Queen's Bench Division order that the claimant be permitted to give his evidence by video-link from Paris.

But this is old story, because a story datelined February 11 on www.hollywoodreporter.com reports the ruling of `England's highest court' that film director Roman Polanski be allowed to sue the publishers of Vanity Fair magazine for libel from the safety of France. Thus the Court of Appeal ruling is overturned and for the first time a libel claimant gets to give evidence at his trial via video link, one learns.

On evidences and inquiries, if you'd followed the current developments in the stamp paper scam, you'd have read about Telgi participating in a videoconference hearing with the special court, from Yerawada Central Prison. Goa too is thinking of introducing video conferencing facilities, as Maharashtra did recently, not only to cut down expenses but also as a check against escapes in transit!

The bug bunker

Quite ignominiously, the computer came up in the Lloyds Steel Industries Ltd case that kept the Mumbai tribunal busy recently. The excise officials were alleging clandestine removal of goods, and the company took shelter behind a "programming error, which resulted in an erroneous report being generated from the computer". The tribunal observed that the company's claim was found to be correct during investigation. Also, the computer in-charge had filed an affidavit before the Commissioner explaining the circumstances that led to the program error.

Though Arthur Guiterman had advised that admitting error clears the score, and proves you wiser than before, isn't it a pity that computers can't depose in their own defence, at least as yet!

Cases@TheHindu.co.in

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