TaxTMI 
TaxTMI 
TaxTMI 
2023 (9) TMI 22
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....- under Section 114A of the Customs Act, 1962 on M/s. Plastic Cottage Trading Company (for short, referred to as "the appellant company"). Besides, the impugned order has also imposed penalties of Rs. 20,00,000/- and Rs. 40,00,000/- on the appellant Shri Junaid Kudia under Section 112(a) ibid and 114AA ibid respectively. Besides, the impugned order has also imposed penalty of Rs.5,00,000/- on the other appellant Shri Zaid Kudia, partner of the appellant company under Section 112(a) ibid. 1.2 With regard to the consignments imported through Nhava Sheva port, the impugned order has rejected the declared assessable value of Rs. 13,35,107/- and re-determined the same at Rs.70,27,005/-; confirmed differential customs duty amounting to Rs.16,75,752/- along with interest. The impugned order has imposed penalty of Rs.16,75,752/- on the appellant company under Section 114A ibid; imposed penalty of Rs.50,000/- and Rs.2,00,000/- on Shri Junaid Kudia under Section 112(a) ibid and 114AA ibid respectively. In respect of the appellant Shri Zaid Kudia, the impugned order has imposed penalty of Rs.20,000/- under Section 112(a) ibid. 2. Brief facts of the case are that the officers of Directorate ....
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....the imported goods etc. Thus, he submitted that cross-examination of the witness is natural right of the appellant and cross examination is an important component of natural justice and denial of the same by an adjudicator in quasi-judicial proceedings is highly improper. To support such stand, the learned Advocate has relied on the judgment of the Pamwi Tissues Ltd. Vs. Collector of Central Excise, Chandigarh 1996(86) ELT 278 Tribunal, Manek Chemicals Pvt. Ltd. Vs. Union of India - 2016 (334) ELT 302(Guj.) and Andaman Timber Industries Vs. Commissioner of C. EX., Kolkata-II - 2017 (50) STR 93 (S.C.). 3.1 Learned Advocate also submitted that it is not factually correct that the emails were recovered from the premises of the appellant company. The same were taken by way of computer printouts during search of premises of M/s Winsor Enterprises and were in fact not available in hard copies even at the said premises on the date of search. He further submitted that said computer printouts are not admissible as evidence under Section 138C of Customs Act, 1962, as the requirements of the said section have not been complied. In this context, he relied on the judgments of Hon'ble Supreme C....
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.... West Bengal - 2002 (148) ELT 364 (Tri.-Kolkata) and Collector of Customs, Cochin Vs. Arvind Exports (P) Ltd. - 2001 (130) ELT 54 (Tri.-LB). 3.2 Learned Advocate further submitted that the department has to follow the procedures and norms provided in the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. In the present matter, the adjudicating authority has re-determined the value and confirmed the charges of undervaluation and has proposed redetermination of customs value in terms of Rule 10 (1)(e) ibid. The said sub-rule envisages to include all other payments actually made or to be made as a condition of sale of the imported goods, by the buyer to the seller or a third party, to be included in the assessable value. However, in the present matter, there is no evidence available on record to prove that any extra payment, over and above the contracted amount was made to the seller or any third party, in context with the importation of subject goods. The conclusion by the DRI is solely based on the so-called confessional statement of Mr. Junaid Kudia, which was recorded under duress and pressure and the said statement has already been retracted. Further, DRI ....
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....n this regard, the learned AR has relied on the decisions in the case of Union of India Vs. Rajendra Bajaj [2010 (253) ELT 165 (Bom)], Kanungo & Co. Vs. Collector of Customs, Calcutta And Others [1983 (13) ELT 1486 (S.C).], Fortune Impex Vs. Commissioner of Cus., Calcutta [2001 (138) ELT 556 (Tri.- Kolkata)] and Suman Silk Mills Pvt. Ltd. Vs. Commissioner of Cus. & C. Ex., Baroda [2002 (142) ELT 640 (Tri.-Mumbai ). 5. Heard both sides and perused the case records, including the written submissions filed during the course of hearing of appeals. 6. Rejection of declared value on Bill of Entry is a serious charge and the same could have been rejected on the basis of cogent examination of evidences and justifiable reasons. We find that the DRI officers conducted search operation in the business premises of M/s Plastic Cottage Trading Co. and M/s Winsor Enterprises. Panchama's both dated 11-4-2017 were prepared in respect of recovery of records/ documents/ files/ print outs of emails and sets of invoices retrieved from emails /computers/ mobile phones and laptop. The Officers also recorded statement of Shri Junaid Kudia, Shri Mukhtar Kudia on different dates. On the basis of mails ret....
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....ns referred to in sub-section (1) in respect of a computer printout shall be the following, namely:- (a) the computer printout containing the statement was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, there was regularly supplied to the computer in the ordinary course of the said activities, information of the kind contained in the statement or of the kind from which the Information so contained is derived; (c) throughout the material part of the said period, the computer was operating properly or, if not, then any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of the contents; and (d) the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing i....
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....t computer, shall be taken to be supplied to it in the course of those activities; (c) a document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation. - For the purposes of this Section, - (a) "computer" means any device that receives, stores and processes data, applying stipulated processes to the information and supplying results of these processes; and (b) any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process." 8. On reading of Section 138C of the Customs Act, 1962, it is seen that the Legislature had prescribed the detailed procedure to accept the computer printouts and other electronic devices as evidences. It has been stated that any proceedings under the Act, 1962, where it is desired to give a statement in evidence of electronic devices, shall be evidences of any matter stated in the certificate. In the present case, we find that the provisions of Section 138C of the Act were not complied with to use the computer printouts ....
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....dentifies the electronic record containing the statement; (b) The certificate must describe the manner in which the electronic record was produced; (c) The certificate must furnish the particulars of the device involved in the production of that record; (d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and (e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device. 15. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc., withou....
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....ion can be admitted in the present proceedings, only subject to the satisfaction of the subsection (2) of Section 138C ibid. This refers to the certificate from a responsible person in relation to the operation of the relevant laptop/computer. After perusing the record of the case, we note that in respect of the electronic documents in the form of computer printouts from the seized laptops and other electronic devices, have not been accompanied by a certificate as required by Section 138C(2) ibid as above. In the absence of such certificate, in view of the unambiguous language in the judgment of the Hon'ble Supreme Court (supra), the said electronic documents cannot be relied upon by the Revenue for confirmation of differential duty on the appellant. In the present case, the main evidence on which, Revenue has sought to establish the case of undervaluation and misdeclaration of the imported goods is in the form of the computer printouts taken out from the laptops and other electronic devices in respect of which the requirement of Section 138C(2) ibid has not been satisfied. On this ground, the impugned order suffers from uncurable error and hence, is liable to be set aside. 11. Th....