TaxTMI 
TaxTMI 
TaxTMI 
2018 (4) TMI 856
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....ters for affixing MRP stickers etc. and also recorded statements of the Directors of the importers during the course of investigation. A Show Cause Notice dated 06.06.2016 was issued, proposing demand of customs duty along with interest and for imposition of penalties on the importers and other persons. The Additional Director General (Adj.) of DRI, New Delhi has been appointed as the common adjudicating authority by CBEC to adjudicate the Show Cause Notice in respect of various ports. By the impugned order, the adjudicating authority confirmed the demand of duty alongwith interest and imposed penalties on the importers separately. It has also enhanced the assessable value, in terms of Rule 9 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 read with Section 14 of the Customs Act, 1962 against all the importers. The seized goods were confiscated and redemption fines were imposed. Further, penalties were also imposed on the appellants. Hence, feeling aggrieved with the impugned order, the appellants have filed these appeals before the Tribunal. 2. The ld. Advocate appearing on behalf of the appellants argued the matter at length and also filed written....
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..... The issue involved in these cases is mainly confined for determination, as to whether, the transaction values declared by the importers are correct or not. The adjudicating authority observed that the evidence for the actual price was retrieved from the laptop, which contained the email correspondences made by Shri Aseem Asrani. It has been alleged that the printouts were taken from the electronic devices used by Shri Nikhil Asrani and Shri Aseem Asrani. The authenticity of all the said printouts was admitted by them in their statements. On the other hand, the appellants disputed the veracity and authenticity of the evidences, collected through electronic devices. 7. Section 138C of the Act, 1962 provides admissibility of micro films, facsimile copies of documents and computer print- outs as documents and as evidence. For the proper appreciation of the case, Section 138C of the Act, 1962 is reproduced below: SECTION 138C. Admissibility of micro films, facsimile copies of documents and computer print outs as documents and as evidence. - (1) Notwithstanding anything contained in any other law for the time being in force, - (a) a micro film of a document or the reproduction o....
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.... any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. (4) In any proceedings under this Act and the rules made thereunder where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, - (a) identifying the document containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall b....
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....ed during the seizure of the electronic devices, as required under the law. 9. The investigation is normally started after collecting the intelligence/information from various sources. The investigating officers are procuring the evidences in the nature of documents, statements, etc. to establish the truth. During the evolution of technology, the electronic devices were used as evidence. In this context, the law is framed to follow the procedure, while using the electronic devices as evidence for authenticity of the documents, which would be examined by the adjudicating authority during adjudication proceeding. In the instant case, it is found that the entire case proceeded on the basis of the electronic documents as evidence. But the investigating officers had not taken pain to comply with the provisions of the law to establish the truthfulness of the documents and merely proceeded on the basis of the statements. Hence, the evidence of electronic devices, as relied upon by the adjudicating authority cannot be accepted. 10. The Hon'ble Supreme Court in the case of Anvar P.V. (supra), while dealing with Section 65B of the Evidence Act, 1872 (Parimateria to Section 138C of the Act,....
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.... justice. 17. Only if the electronic record is duly produced in terms of Section 65-B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be made to Section 45- A-opinion of Examiner of Electronic Evidence. 18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65-B of the Evidence Act are not complied with, as the law now stands in India." ........................................... ........................................... "22.The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generaliaspecialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that extent, the statement of law o....
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....pon the decision of the Tribunal in the case of M/s.Laxmi Enterprises (supra) in which the Tribunal upheld the charge of under-valuation and demand for differential duty. In the said decision, Tribunal overruled the objection of the appellant in connection with Section 138 C, by holding that the documents printed out from lap-top will be admissible as evidence in view of the fact that the truth of such documents stand admitted by the proprietor in his statement. We have gone through the said decision of the Tribunal and we note that the judgement of the Hon'ble Supreme Court in the case of Anvar P.V. (supra) has not been cited and was never brought to the notice of the Bench. Consequently, we are of the view that the decision in the case of Laxmi Enterprises is not applicable to the facts of the present case. 13 It is submitted by the ld. Counsel for the appellant that the adjudicating authority had not examined the witnesses, as per the provisions of Section 138B of the Act, 1962. He has relied upon the decision of Hon'ble Delhi High Court, in the case of J&K Cigaratte - Vs. - Collector of Customs - 2009 (242) ELT (Del.). In that case, the Hon'ble High Court, while dealing with ....