TaxTMI 
TaxTMI 
2025 (6) TMI 1961
X X X X Extracts X X X X
X X X X Extracts X X X X
....alty. 2. Excise Appeal No. 51316 of 2019 has been filed by the department to assail that part of the order dated March 11, 2019 passed by the Commissioner (Appeals) by which the appeal filed by Rakshit Bhansali, Director of Paradise Steels against the order dated January 12, 2018 passed by the Joint Commissioner imposing penalty of Rs. 2 lacs upon him under rule 26 of the Central Excise Rules, 2002 2002 Rules has been allowed. 3. Excise Cross No. 50567 of 2019 has been filed by Paradise Steels in Excise Appeal No. 51315 of 2019 for dismissal of the appeal. 4. Paradise Steels is engaged in the manufacture of stainless steel patta/patti. During investigation of the factory premises, certain records and a Lenovo computer were resumed and on an analysis of the records and data maintained in the computer, it was observed that Paradise Steels had cleared cold rolled patta in the guise of hot rolled patta. As hot rolled patta was exempted from payment of central excise duty, Paradise Steels had reversed 6% amount of total value of exempted goods instead of paying duty @ 12.36%. Based on the data retrieved from the computer and the statement of Rakshit Bhansali, Director of Paradi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t lead to certification as regards the authenticity of the data retrieved by the revenue authorities. I find that not taking certificate from the person operating the computer regarding the authenticity of the data is big flaw and cannot be ignored. I find that in the present case, since the Central Excise officers have not followed the procedure under Section 36B of the said Act and the printout of computer and pen drive has no evidentiary value without any certification by the appellant..... 5.2.2 I find that in the present case, the data was not stored in the computer. I find that the computer expert accompanied with the Central Excise officers had taken the printout from the USB drive by connecting to the computer. The officers had not obtained any signature certificate on such retrieved data as required under Section 36B of the said Act. It is also noted that none of the conditions under Section 36B(2) of the Act, 1944 was observed. In such situation, it is difficult to accept the printout as an evidence to support the clandestine removal of the goods. It is noted that the requirement of certificate under Section 36B(4) is also to substantiate the veracity of truth in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ner (Appeals) committed an error in holding that the data retrieved from the computer is not supported by corroborative evidence. Learned authorized representative also submitted that Rakshit Bhansali, Director of Paradise Steels admitted in his statement dated January 10, 2014 that Paradise Steels had not cleared any hot rolled patta and that the goods cleared by them as hot rolled patta were cold rolled patta. 13. Shri Jitin Singhal, learned counsel appearing for the respondents, however, supported the impugned order and submitted that panchnama cannot be treated as a certificate under section 36B of the Central Excise Act and to support this contention, learned counsel placed reliance upon the decision of the Tribunal in M/s Trikoot Iron & Steel Casting Ltd. vs Additional Director General (Adjn.), Directorate General of GST Intelligence, New Delhi Excise Appeal No. 55779 of 2023 decided on 09.09.2024. Learned counsel also submitted that the statement of the Director could have been admitted in evidence only if the requirement set out in section 9D of the Central Excise Act had been satisfied. 14. The Commissioner (Appeals), in the impugned order, has held that the finding ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion 9D of the Central Excise Act or in section 138B of the Customs Act. A bare perusal of sub-section (1) of these two sections makes it evident that the statement recorded before the concerned Officer during the course of any inquiry or proceeding shall be relevant for the purpose of proving the truth of the facts which it contains only when the person who made the statement is examined as a witness before the Court and such Court is of the opinion that having regard to the circumstances of the case, the statement should be admitted in evidence, in the interests of justice, except where the person who tendered the statement is dead or cannot be found. In view of the provisions of sub-section (2) of section 9D of the Central Excise Act or sub-section (2) of section 138B of the Customs Act, the provisions of sub-section (1) of these two Acts shall apply to any proceedings under the Central Excise Act or the Customs Act as they apply in relation to proceedings before a Court. What, therefore, follows is that a person who makes a statement during the course of an inquiry has to be first examined as a witness before the adjudicating authority and thereafter the adjudicating authority ....