TaxTMI 
TaxTMI 
2025 (6) TMI 1286
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....III), Jawaharlal Nehru Customs House (JNCH), Nhava Sheva, Taluka-Uran, District Raigad, Maharashtra. 2.1 The brief facts of the case are that the appellants had imported varieties of bags, PVC leather cloth falling under Customs Tariff Item (CTI) 4202 2290, 5903 1090 and 5903 2090 of the First Schedule to the Customs Tariff Act, 1975 from China through the ports of Nhava Sheva, Mumbai, Chennai. Directorate of Revenue Intelligence, Regional Unit, Surat (DRI) had developed an intelligence that the appellants have resorted to under valuation of imported goods with an intention to evade customs duty in connivance with overseas suppliers/manufacturers/commissioner agent. Detailed investigation was conducted by DRI including search of registered premises of the appellant company M/s Winsor Enterprises on 11.04.2017 and documents in the form of print outs of e-mails were recovered which indicated that the appellants had mis-declared the actual value of the goods before the proper authorities of Customs at the time of seeking clearance of imported goods. Further, statements were recorded from various persons concerned. 2.2 On completion of investigation, DRI had issued Show Cause Not....
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....als before the Tribunal. 3.1 Learned Advocate submitted that the adjudicating authority had confirmed the demands based on the statements of partners of the appellant company, without considering the vital facts about the value of goods declared before the jurisdictional customs authorities and after paying proper duty had the goods cleared from customs control. He further stated that these statements had been recorded under duress by the investigation agency and those statements have been retracted by the concerned persons at the first available opportunity and thus these cannot form the basis for such confirmation of the demand of duty. 3.2 Learned Advocate submitted that alleged higher value invoices and other evidential documents were taken by way of computer printouts during search of premises of M/s Winsor Enterprises by DRI. Since the legal requirements of the Section 138C of Customs Act, 1962, have not been complied during the process of recording it, he claimed that the said computer printouts are not admissible as evidence under Section 138C ibid. Further, he also submitted that the request for cross examination of Shri Zulfikar, from whose possession e-mails provin....
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....t of the same investigation. These were examined by the Co-ordinate Bench of this Tribunal in the case of Junaid Kudia Vs. Commissioner of Customs, Mumbai Import-II - (2024) 16 Centax 503 (Tri.-Bom.), wherein it was held that the demand of differential duty by enhancing the assessable value and consequential imposition of penalty are not legally sustainable. The relevant paragraphs of the said Order are extracted and given below: "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 retrieved from the email ID of Shri Mukhtar Kudia, i.e., [email protected] or Shri Zulfikar Shaikh, office ....
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....the adjudicating authority during adjudication proceedings. 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. 9. We also find that 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, 1962), observed as under : "13. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evide....
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....h, 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. Generalia speciali bus non derogant, special law will always prevail over the general law. It appears, the Court omitted to take note of Sections 59 and 65A 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 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case, does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the tim....
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....we note that the judgment 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. 12. It is submitted by the Learned Counsel for the appellant that the adjudicating authority had not examined the witnesses, as per the provisions of Section 138B of the Act, 1962. In this context, we find that the Hon'ble Delhi High Court, in the case of J&K Cigaratte v. Collector of Customs - 2009 (242) E.L.T. 189 = 2011 (22) S.T.R. 225 (Del.),while dealing with Section 9D(1) of the Central Excise Act, 1944 (Parimatria to Section 138B of the Customs Act, 1962) have held that the procedure as prescribed in the statute is required to be followed for proving the truth of the statement. The said decision of the Hon'ble Delhi High Court has also been relied upon by the Hon'ble Punjab & Haryana High Court, in the case of G-Tech Industries v. Union of India - 2016 (339) E.L.T. 209 (P & H). We find force in the submissions of the Learned Counsel for the appellant that the adjudicating autho....