TaxTMI 
TaxTMI 
2009 (10) TMI 67
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....04. Commissioner had dropped the proposal to demand duty on such clearances made during 2001-02, on the ground that the only evidence available were computer print outs. As they did not satisfy the conditions under Section 36B(2) of Central Excise Act (the Act) they could not be used as evidence as such, in the absence of corroboration. 2. Assessees challenged the order on the basis that computer printouts had been taken using floppies recovered from the assessees without following the statutory formalities. Unauthenticated software had been used to retrieve files from the floppies. Adequate corroboration of printouts was not available to confirm the demand ordered. 3.Revenue assailed dropping of the demand for the period 2001-02 by the Commissioner. He had held the material clearances to be evidenced only by computer printouts without other evidence. Revenue has submitted that documents that evidenced clearances in 2002-03 and 2003-04 were good evidence also in respect of clearances in 2001-02. Floppies had been seized properly. The printouts as such could therefore be used as evidence as per Sec. 36B(2) of the Act. The print outs were adequate evidence to support the ....
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....uation. The ITAT had allowed the ROM of the assessee and rectified the omission. On appeal by the revenue, the High Court vacated the order of the Tribunal. Apex Court passed the judgment cited, in appeal against the said order of the High Court. 7.1 Their lordships had observed that the purpose behind enactment of Section 254(2) of the IT Act was based on the fundamental principle that no party appearing before the Tribunal, be it an assessee or the Department, should suffer on account of any mistake committed by the Tribunal. This fundamental principle had nothing to do with the inherent powers of the Tribunal. One of the important reasons for giving the power of rectification to the Tribunal was to see that no prejudice was caused to either of the parties appearing before it by its decision based on a mistake apparent from the record. When prejudice resulted from an order attributable to the Tribunal's mistake, error or omission, then it was the duty of the Tribunal to set it right. E/ROM /50, 51/2008 8.We have considered the apparent errors pointed out by SASAI and SUAS. (a) It is pointed out that the following finding in para 17 of our Final Order is an....
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....he computer was another error apparent from the record. We do not find any error in our Final Order in finding certain files to be reliable. (c) Bench is alleged to have ignored the objection of assessees to accepting the computer printouts as evidence contrary to the mandate contained in Section 36B(2) of the Central Excise Act (the Act). Further, provisions of the Evidence Act applied to the proceedings. Section 65(1) of the Evidence Act barred use of the printouts of electronic records contained in floppies unless the procedure prescribed in its Section 65(2) was followed. Section 65(2) was pari materia with Section 36B(2) of the Act. We find that the applicability or otherwise of provisions of Section 36B(2) was examined by us at length before a view was taken. A different position cannot be canvassed in an ROM petition for the reason that the appellants held a contrary view. We find that the admissibility of computer printouts in adjudication proceedings is covered by the Act in its Section 36B. This Section opens with a non obstante clause "1. Notwithstanding anything contained in any other law for the time being in force..... ". As there are specific provisions i....
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....d showed that they contained inputs fed before they came into possession of the investigating agency. Assessees have no case that 3.5" floppies had not been seized from them. We have found that the files found reliable had not been tampered by the officers. The source of the files are the floppies maintained by the assessees. What is not in doubt is that the seized files contained genuine data. The assessee alone was in possession of the information as to when the data got transferred from zip drive to floppy. We do not find any injustice caused to SASAI and SUAS by our finding which is not wrong. The following finding in our Final Order is not denied by the assessees : "SASAI admitted in their final submissions dated 3-1-08 that computer printsouts with corroboration are acceptable evidence". This showed that the printouts carried true facts. This application is rejected. 9. In the ROM filed by the revenue, it is pointed out that in para 14 of the Final Order it was recorded in the fifth sentence that "The seized floppies were not sealed". In para 12 of the Final Order, it was recorded as, "The Ld. Special Consultant made the following submissions. Floppies were not se....