TaxTMI 
TaxTMI 
2022 (12) TMI 908
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....nt, under such admitted fact, the Tribunal is correct in observing that the said document cannot be used as evidence for not satisfying the conditions laid down in Section 36-B (2) of the Central Excise Act, 1944? (2) Whether in the present facts and circumstances of the case, the Tribunal is correct in applying the observations of the Hon'ble Supreme Court made in the case of Anvar P.V. to the present case, without considering the fact and circumstances on which the Hon'ble Apex Court has delivered the said judgment? (3) Whether under the facts and circumstances of the case, the Tribunal is correct in law by giving emphasis only on the conditions stipulated in Section 36-B(2) of the Central Excise Act, 1944 without considering other admitted relevant materials on record?" 3. The same three questions have been framed by this Court in OTAPL No.17 of 2016 by a separate order dated 11th December, 2017. 4. In OTAPL No.14 of 2016, by an order of the same date the following questions were framed for consideration: "(1) Whether in the facts and circumstances of the case, the Tribunal is correct in deleting the penalty as imposed on the respondent U/r.26 of the Central Excise Ru....
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....DGCEI) simultaneously raided the factory and office premises of BSAL, the residence of one Shri Sanatan Maity, accountant of SSC and also the office premises of BSAL and recovered a number of incriminating documents each of which was seized under a Panchanama. During the course of the investigation, DGCEI also recorded the statements of Shri Bansal, Shri Agarwal and Shri Maity and the two partners of SSC. 10. In para 4 of the memorandum of appeal of the Department in OATPL No. 13 of 2016 this Court, it is averred that "comparison of the computer print out of the sales ledger of the Respondent recovered from the premises vis-à-vis the invoices issued to the Purchasing Dealer during the relevant period showed that goods involving duties of Rs.28,17,957.00 was sold by the Respondent without payment of duty. Both the Partners of the Respondent in their statements confirmed the clandestine removal reflected in the ledger." 11. Since the questions of law framed revolve around the computer print out of the sales ledger of 'Sunderlal', it is necessary to dwell upon the legal implications of the said document. Admittedly, the said document, i.e., computer print-out is in the nature....
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....ing, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of 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." 13. The correctness of the above decision in Anvar P.V. v. P.K. Basheer (supra) was revisited by the Supreme Court in a subsequent decision in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1. The Supreme Court reiterated the mandatory nature of Section 65-B (4) of the EA and declined to revisit the decision in Anvar P.V. v. P.K. Basheer (supra). In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (supra) the Supreme Court held as under: "32. Coming back to Section 65-B of the Indian Evidence Act, sub-section (1) needs to be anal....
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.... then the only means of proving information contained in such electronic record can be in accordance with Section 65-B(1), together with the requisite certificate under Section 65-B(4). This being the case, it is necessary to clarify what is contained in the last sentence in paragraph 24 of Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 which reads as "...if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act...". This may more appropriately be read without the words "under Section 62 of the Evidence Act,...". With this minor clarification, the law stated in para 24 of Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 does not need to be revisited." 14. The Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (supra) categorically held that the decisions of the Supreme Court of India in Tomaso Bruno v. State of U.P. (2015) 7 SCC 178 as well as Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801 had not stated the law on Section 65-B of the EA correctly and were in the teeth of the judgment in Anvar P.V. v. P.K. Basheer (supra). The Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (supra) further explain....
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....g of Section 65-B (4) of the EA and, therefore, the above decisions in Anvar P.V. v. P.K. Basheer (supra) and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (supra) would squarely apply to the facts of the case on hand. Admittedly, in the present case, no certificate as required under Section 36-B(2) read with Section 36- B (4) of the CE Act was produced. Consequently, the CESTAT concluded that the computer print-outs taken from the residence of the accountant of SSC were inadmissible in evidence since they were not accompanied by the requisite certificates as mandated under Section 36-B(2) read with Section 36-B(4) of the CE Act. 17. Mr. Choudhury Satyajit Mishra, learned Senior Standing Counsel for the Appellant-Department contended that since the Department had seized only the computer print-out and not the computer, it cannot be expected to comply with the requirements of Section 36-B(2) read with 36-B(4) of the CE Act. 18. The Court is unable to accept the above submission. Since it is the Department which is seeking to place reliance on the seized computer print-out, the burden is on the Department to ensure that the requirements of the law as regards its admissibil....