Judgment :- Elipe Dharma Rao, J. 1. The father of the detenu is the petitioner. He filed this petition challenging the impugned order of detention which was slapped on the detenu under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (in short COFEPOSA). 2. The detenu is the proprietor of M/s. T.T. Enterprises, Trichy, engaged in the trade of apples. It is alleged that based on the specific intelligence, the officials of the Directorate of Revenue Intelligence have initiated investigation with regard to under-valuation in the import of apples from various countries mainly from M/s. Evan Fruit Company, USA and on investigation, they came to know that the detenu has committed the offence of under-valuation in the import of apples and the total customs duty evasion is to the tune of Rs.1.75 crores and thus he has consciously evolved a modus operandi to evade payment of appropriate customs duty by producing two sets of invoices, one showing lesser value for customs and another with actual value, which is the final loading invoice and therefore it is necessary to detain him under the provisions of COFEPOSA with a view to prevent him from indulging in smuggling of goods in future, further ordering confiscation of apples so imported under Section 111(m) of the Customs Act, 1962. The said order of detention has been challenged on various grounds in this Habeas Corpus Petition. .3. Mr. B. Kumar, the learned senior counsel appearing for the petitioner would submit that the documents mentioned in the index at Page Nos.42 and 43, which were relied upon by the Detaining Authority while clamping the impugned order of detention, were not supplied to the detenu. He has further submitted that the detenu, by his representation dated 12. 2008, has specifically requested to furnish the legible copies of documents at page Nos.298, 300-303, 335-338, 347, 348, 358, 362, 403, 404, 411, 412, 414, 415 and 424, since they are illegible, but no such documents were furnished to the detenu and therefore, it has caused much prejudice to the detenu in making effective representation to the authorities concerned and therefore, on this sole ground itself, the impugned order of detention is liable to be quashed. .4. .4. In support of his arguments that non-supply of relied on documents would vitiate the order of detention, the learned senior counsel for the petitioner would rely on a judgment of the Honourable Apex Court In Adishwar Jain Vs. Union of India And Another [(2007) 2 Mlj (Crl.) 529 (SC)], wherein it has been held as follows: "Non-supply of relevant documents, which are material documents, to the detenu would affect the detenus right to make an effective representation which is his fundamental right under Article 22(5) of the Constitution of India. Right to make an effective representation is also a statutory right." 5. On the contrary, the learned Additional Public Prosecutor appearing for the respondents 1 and 3 would submit that the documents said to have been relied upon by the Detaining Authority are the documents produced by the detenu himself at the time of investigation and the so-called illegible documents are also nothing but the bills and other documents either seized or produced by the detenu himself at the time of investigation. The learned Additional Public Prosecutor has strenuously submitted that the documents referred to above by the detenu are very well legible and this stand has been invented by the detenu for the purpose of this petition, which should not be entertained. The learned Additional Public Prosecutor would further submit that since all the above said documents regarding which arguments have been advanced on the part of the detenu are emanated from the detenu himself, either the non-supply of the documents themselves or the legible copies of the documents would not, in any way, vitiate the impugned order of detention. .6. On a perusal of the materials placed on record, we are able to see that the documents mentioned in the index at page Nos.42 and 43 and the documents at page Nos. 298, 300-303, 335-338, 347, 348, 358, 362, 403, 404, 411, 412, 414, 415 and 424 are forming part of bills of entry filed by the detenu himself for the import of apples and they were submitted by the detenu himself during the course of investigation. Therefore, in our considered opinion, either the non-supply of very such documents or even the legible copies of the same, would not, in any way, have the effect of branding the impugned order of detention illegal. Therefore, in our considered opinion, either the non-supply of very such documents or even the legible copies of the same, would not, in any way, have the effect of branding the impugned order of detention illegal. While arriving at this conclusion, we garner support from the judgment of the Honourable Apex Court In Usha Agarwal Vs. Union Of India And Others [(2007) 1 SCC(Cri) 342], wherein the Honourable Apex Court has held that copies of the documents supplied to the detenu, which are alleged to be illegible, were the documents sent by the detenu himself to the Department concerned and therefore, illegibility of copies of portion of the documents is not a ground on which detention can be said to be vitiated. In this view of the matter, the judgment of the Honourable Apex Court In Adishwar Jain Vs. Union Of India And Another [(2007) 2 Mlj (Crl.) 529 (SC)] relied on by the learned senior counsel for the petitioner has no application to the facts of the case on hand. This submission made on the part of the learned senior counsel for the petitioner, is, accordingly, rejected. 7. The learned senior counsel for the petitioner has strenuously argued that the sole allegation of the respondents against the detenu is that he has committed the offence of under-valuation in the import of apples and thus he has evaded the duty to the tune of Rs.1.75 crores, but the respondents have nowhere stated as to how they doubted the veracity of the valuation offered by the detenu in his business transaction and mere suspicion is not sufficient to arrive at a conclusion that the detenu has committed the offence of under-valuation and the procedure contemplated under the Customs Act, 1962 and the Rules framed thereunder have not been followed by the respondents, leading to their arriving at an erroneous conclusion. The learned senior counsel for the petitioner would further argue that the alleged under-valuation can be rectified by assessing the value of the goods by following the procedure contemplated under the Customs Act and the Rules framed thereunder and if aggrieved of the same, the detenu could invoke the appeal remedy available to him under the Customs Act and without assessing the alleged under-valuation and without affording the opportunity of appeal remedy to the detenu, which is very well available to him, on the alleged solitary incident, the detenu was detained under COFEPOSA, which is bad in law and therefore, the same has to be quashed. 8. To deal with this aspect of the case, we must analyse the legal aspects covering the subject. 9. The Customs Act, 1962 provides for the levy of duties of customs, which is the issue on hand. Chapter V of the Customs Act, 1962 deals with levy of, and exemption from, customs duties. Section 14 deals with valuation of goods. For the sake of convenience and better understanding, Section 14 of the Customs Act, 1962 is extracted hereunder: "14. The Customs Act, 1962 provides for the levy of duties of customs, which is the issue on hand. Chapter V of the Customs Act, 1962 deals with levy of, and exemption from, customs duties. Section 14 deals with valuation of goods. For the sake of convenience and better understanding, Section 14 of the Customs Act, 1962 is extracted hereunder: "14. Valuation of goods - (1) For the purposes of the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force, the value of the imported goods and export goods shall be the transaction value of such goods, that is to say, the price actually paid or payable for the goods when sold for export to India for delivery at the time and place of importation, or as the case may be, for export from India for delivery at the time and place of exportation, where the buyer and seller of the goods are not related and price is the sole consideration for the sale subject to such other conditions as may be specified in the rules made in this behalf: Provided that such transaction value in the case of imported goods shall include, in addition to the price as aforesaid, any amount paid or payable for costs and services, including commissions and brokerage, engineering, design work, royalties and licence fees, costs of transportation to the place of importation, insurance, loading, unloading and handling charges to the extent and in the manner specified in the rules made in this behalf: Provided further that the rules made in this behalf may provide for, - (i)the circumstances in which the buyer and the seller shall be deemed to be related; (ii)the manner of determination of value in respect of goods when there is no sale, or the buyer and the seller are related, or price is not the sole consideration for the sale or in any other case; (iii)the manner of acceptance or rejection of value declared by the importer or exporter, as the case may be, where the proper officer has reason to doubt the truth or accuracy of such value, and determination of value for the purposes of this section: Provided also that such price shall be calculated with reference to the rate of exchange as in force on the date on which a bill of entry is presented under Section 46, or a shipping bill of export, as the case may be, is presented under Section 50. (2) Notwithstanding anything contained in sub-section (1), if the Board is satisfied that it is necessary or expedient so to do, it may, by notification in the Official Gazette, fix tariff values for any class of imported goods or export goods, having regard to the trend of value of such or like goods, and where any such tariff values are fixed, the duty shall be chargeable with reference to such tariff value." 10. Thus, as per this Section, the value of the imported goods shall be the transaction value of such goods, i.e. the price actually paid or payable for the goods and where the Proper Officer has the reason to doubt the truth or accuracy of such value, he shall adhere to the procedure contemplated in the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 to arrive at the correct value of the goods and thereafter proceed in accordance with law. 11. In exercise of the powers conferred by Section 156 read with the above extracted Section 14 of the Customs Act, 1962, the Central Government has framed the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 (hereinafter referred to as the Rules). Rule 3 of the said Rules deals with determination of the method of valuation and the same reads as follows: "RULE 3. Rule 3 of the said Rules deals with determination of the method of valuation and the same reads as follows: "RULE 3. Determination of the method of valuation - (1)Subject to rule 12, the value of imported goods shall be the transaction value adjusted in accordance with provisions of rule 10; (2)Value of imported goods under sub-rule (1) shall be accepted: Provided that - (a) there are no restrictions as to the disposition or use of the goods by the buyer other than restrictions which - (i)are imposed or required by law or by the public authorities in India; or (ii)limit the geographical area in which the goods may be resold; or (iii)do not substantially affect the value of the goods; (b) the sale or price is not subject to some condition or consideration for which a value cannot be determined in respect of the goods being valued; (c) no part of the proceeds of any subsequent resale, disposal or use of the goods by the buyer will accrue directly or indirectly to the seller, unless an appropriate adjustment can be made in accordance with the provisions of rule 10 of these rules; and .(d) the buyer and seller are not related, or where the buyer and seller are related, that transaction value is acceptable for customs purposes under the provisions of sub-rule .(3) below. .(3) (a) Where the buyer and seller are related, the transaction value shall be accepted provided that the examination of the circumstances of the sale of the imported goods indicate that the relationship did not influence the price. .(b) In a sale between related persons, the transaction value shall be accepted, whenever the importer demonstrates that the declared value of the goods being valued, closely approximates to one of the following values ascertained at or about the same time. .(b) In a sale between related persons, the transaction value shall be accepted, whenever the importer demonstrates that the declared value of the goods being valued, closely approximates to one of the following values ascertained at or about the same time. (i)the transaction value of identical goods, or of similar goods, in sales to unrelated buyers in India; (ii)the deductive value for identical goods or similar goods; (iii)the computed value for identical goods or similar goods; Provided that in applying the values used for comparison, due account shall be taken of demonstrated difference in commercial levels, quantity levels, adjustments in accordance with the provisions of rule 10 and cost incurred by the seller in sales in which he and the buyer are not related; .(c) substitute values shall not be established under the provisions of clause (b) of this sub-rule. .(4) If the value cannot be determined under the provisions of sub-rule (1), the value shall be determined by proceeding sequentially through rule 4 to 9." 12. Thus, a thorough procedure has been contemplated under Rule 3 as to how the value of the goods has to be determined in the event the Proper Officer has reason to doubt the truth or accuracy of value of the goods furnished by the importer, further making it clear that if the value of the goods cannot be determined under the provisions of this rule, the value shall be determined by proceeding sequentially through rules 4 to 9. Rule 4 deals with transaction value of identical goods and Rule 5 deals with Transaction value of similar goods and Rule 6 makes it clear that if the value of imported goods cannot be determined under the provisions of Rules 3,4 and 5, the value shall be determined under the provisions of rule 7 or, when the value cannot be determined under that rule, under rule 8. It has been provided under Rule 6 that at the request of the importer, and with the approval of the proper officer, the order of application of rules 7 and 8 shall be reversed. Rule 7 deals with Deductive value; Rule 8 deals with computed value; Rule 9 deals with Residual method; Rule 10 deals with cost and services. .13. It has been provided under Rule 6 that at the request of the importer, and with the approval of the proper officer, the order of application of rules 7 and 8 shall be reversed. Rule 7 deals with Deductive value; Rule 8 deals with computed value; Rule 9 deals with Residual method; Rule 10 deals with cost and services. .13. Under Rule 11, the importer or his agent shall furnish a declaration disclosing full and accurate details relating to the value of imported goods; and any other statement, information or document including an invoice for determination of the value of imported goods by the proper officer and under Rule 12, when the proper officer has reason to doubt the truth or accuracy of the value declared in relation to any imported goods, after seeking the explanation from the importer and if the explanation is not satisfactory, the proper officer can reject the declared value and at the request of an importer, the proper officer, shall intimate the importer in wring the grounds for doubting the truth or accuracy of the value declared in relation to goods imported. 14. Thus, a thorough procedure to determine the value of the goods has been contemplated by law under these Rules. The Act and the Rules also mandates the Proper Officer to pass a speaking order, giving the reasons as to how he is not satisfied with the valuation offered by the importer. As per Section 28 of the Customs Act, when any duty has not been levied or has been short-levied or erroneously refunded or when any interest payable has not been paid, part paid or erroneously refunded, the proper officer may serve notice on the person chargeable with the duty within the time limit prescribed therein. Section 128 of the Customs Act provides for appeal to Commissioner against any decision or order passed under the Customs Act by an officer of customs within sixty days from the date of the communication to him of such decision or order. .15. Section 128 of the Customs Act provides for appeal to Commissioner against any decision or order passed under the Customs Act by an officer of customs within sixty days from the date of the communication to him of such decision or order. .15. When such safeguards and procedures have been contemplated under the Customs Act and the Rules framed therein, we are unable to find anything from the bulky material submitted before us by the respondents, that they have followed the procedure contemplated under the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 for assessing the value of the imported goods, so as to say that the detenu has under-valued the same and is thus liable to be punished. No reasons, much less appreciable ones, have been offered by the Department as to how they have arrived at the conclusion that the detenu had under-valued the goods imported. Even if there is any such under-valuation, the respondents are duty bound to follow the above explained procedure contemplated under the Act and the Rules, whereupon the aggrieved party, the detenu in the case on hand, will have the appeal remedy to the Commissioner, as provided under Section 128 of the Customs Act. The burden, to prove that the detenu has committed the offence of under-valuation and the Department has found out the same after scrupulously following the legal procedure mandated under the Act and the Rules, lies on the respondents and once the respondents discharge their burden of proof by producing evidence, then, the onus shifts to the importer to establish that the value offered by him is valid. But, in the case on hand, the respondents have utterly failed to prove that they have scrupulously followed the procedure contemplated under the Act and the Rules and arrived at the conclusion that the detenu has committed the offence of under-valuation. Mere suspicion of the respondents that the detenu might have committed the offence of under-valuation is not sufficient to invoke the preventive laws. When even the nonpayment of duty on such under-valuation can be recovered from the importer by issuing him with the notice under Section 28 of the Customs Act, 1962, we are unable to approve the action of the respondents in slapping the impugned order of detention on the detenu . 16. When even the nonpayment of duty on such under-valuation can be recovered from the importer by issuing him with the notice under Section 28 of the Customs Act, 1962, we are unable to approve the action of the respondents in slapping the impugned order of detention on the detenu . 16. At this juncture, we feel it apt to quote a judgment of the Honourable Apex Court In Comr. of Customs, Calcutta Vs. South India Television (P) Ltd. [ (2007) 6 SCC 373 ]. In this matter before the Honourable Apex Court also, the issue was under-valuation of six consignments of ceramic capacitors and one consignment of diodes while importing them from Hong Kong by the detenu. In those circumstances, the Honourable Apex Court has held as follows: "Value is derived from the price. Value is the function of the price. This is the conceptual meaning of value. Section 14 of the Customs Act, 1962 is the sole repository of law governing valuation of goods. In the present case, the Department has charged the respondent importer alleging mis-declaration regarding the price. There is no allegation of mis-declaration in the context of the description of the goods. The allegation is of under-invoicing. The charge of under-invoicing has to be supported by evidence of prices of contemporaneous imports of like goods. It is for the Department to prove that the apparent is not the real. The value to be declared in the bill of entry is the value determined in accordance with the provisions of Section 14(1) and not merely the invoice price." "Sections 14(1) and 14(1-A) envisage that the value of any goods chargeable to ad valorem duty has to be the deemed price as referred to in Section 14(1). Therefore, determination of such price has to be in accordance with the relevant rules and subject to the provisions of Section 14(1). Section 14(1) and Section 14(1-A) are not mutually exclusive. Therefore, the transaction value under Rule 4 must be the price paid or payable on such goods at the time and place of importation in the course of international trade. Section 14 is the deeming provision. It talks of deemed value. Therefore, what has to be seen by the Department is the value or cost of the imported goods at the time of importation i.e. at the time when the goods reach the customs barrier. Section 14 is the deeming provision. It talks of deemed value. Therefore, what has to be seen by the Department is the value or cost of the imported goods at the time of importation i.e. at the time when the goods reach the customs barrier. Therefore, the invoice price is not sacrosanct." "However, before rejecting the invoice price the Department has to give cogent reasons for such rejection. This is because the invoice price forms the basis of the transaction value. Therefore, before rejecting the transaction value as incorrect or unacceptable, the Department has to find out whether there were any imports of identical goods or similar goods at a higher price at around the same time. Unless the evidence is gathered in that regard, the question of importing Section 14(1-A) does not arise and the invoice price has to be accepted as the transaction value. Invoice is the evidence of value. Casting suspicion on invoice produced by the importer is not sufficient to reject it as evidence of value of 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 to the importer. For proving undervaluation, if the Department relies on declaration made in the exporting country, it has to show how such declaration was procured. Although strict rules of evidence do not apply to adjudication proceedings and apply strictly to the courts proceedings, even in adjudication proceedings, the AO has to examine the probative value of the documents on which reliance is placed by the Department in support of its allegation of undervaluation. Once the Department discharges the burden of proof to the above 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 is valid." 17. The above judgment of the Honourable Apex Court squarely applies to the case on hand since in the case on hand also, the Department has failed to prove as to how they have arrived at the conclusion that there is under-valuation since there is no material on record to show that the Department has followed the procedure contemplated under the Act and Rules to arrive at the conclusion regarding the valuation. Surprisingly, the respondents have placed much reliance on the alleged confession statement given by the detenu before the respondents at the time of investigation, though it is inadmissible in evidence, as per the Evidence Act, except to the extent of recovery under Section 27 of the Evidence Act. 18. Further more, there is a lot of delay in slapping the impugned order of detention on the detenu. For the alleged incident said to have taken place during the year 2005, the impugned order of detention came to be passed on 9. 2008, for which no explanation, worth considering and appreciating, is coming forth from the respondents. Thus, we have no hesitation to hold that the respondents have committed a legal error in slapping the impugned order of detention on the detenu. On this ground, this Habeas Corpus Petition is allowed. 19. The other argument advanced on the part of the learned Additional Public Prosecutor that money was deposited into the account of the detenu from various sources and in one incident it was from Hongkong International Bank, which proves the offence committed on the part of the detenu also cannot be appreciated since we find no wrong in such deposit as the detenu is doing international business and therefore, he has to make payments through various banks. It is also seen from the records and has also been submitted on the part of the detenu that the detenu is having customers all over the world and therefore, he can get deposits from the customers in other countries and therefore, we find nothing wrong in it. For all the above reasons and discussions, this Habeas Corpus Petition is allowed and the impugned order of detention is set aside. The detenu is ordered to be set at liberty forthwith, if his detention is not required in any other case.