TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 76
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....order in original dated 17.07.2017 passed by the Additional Director General (Adjudication), Directorate of Revenue Intelligence, New Delhi imposing penalty upon the respondents herein came to be set aside. 3. It appears from the materials on record that the respondents herein were engaged in the business of importing branded food items from various countries. 4. After the import of the branded food items, they were being sold in Delhi and Mumbai, respectively. Acting upon the information, the business as well as the residential premises of the respondents were raided, and an extensive search was undertaken by the officials of the department. In the course of various searches, the department was able to procure evidence which prima facie established that the respondents had short paid the duty on the import of the goods in question. The investigation revealed that while filing the Bills of Entry for the imported goods, there was a failure to declare the actual RSP/MRP at which the goods were being sold to the ultimate consumers. 5. Thus, it is the case of the revenue that the importers were thereby declaring lower RSP/MRP, which resulted in evasion of duties. 6. In such....
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.... Section 65B of the Evidence Act. Consequently, the evidence in the form of computer print-outs etc. recovered during the course of investigation can be admitted as in the present proceedings only subject to the satisfaction of the sub-section (2) of Section 138C. This refers to the certificate from a responsible person in relation to the operation of the relevant lap-top/computer. After perusing the record of the case, we note that in respect of the electronic documents in the form of computer print-outs from the seized lap-tops and other electronic devices have not been accompanied by a certificate as required by the Section 138C(2) 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 under-valuation and mis-declaration of the imported goods is in the form of the computer printouts taken out from the laptops and other electronic devices seized from the residential premises of Shri N....
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....g consideration of the Provisions of Section 138B ibid. 14. In view of the above discussions and analysis, we do not find any merits in the Impugned order, In confirming the adjudged demands against the appellants. Therefore, the impugned order is set-aside and the appeals filed by the appellants are allowed." 12. In such circumstances, referred to above, the revenue is here before this Court with the present appeals. 13. We heard Ms. Nisha Bagchi, the learned senior counsel appearing for the revenue and Mr. Ashish Batra, the learned counsel appearing for the respondents. 14. The learned counsel appearing for the revenue would vehemently submit that the Tribunal committed a serious error in allowing the appeals filed by the assessee on the ground of non-compliance of Section 138C(4) of the Act, 1962. She would submit that there is cogent and sufficient evidence on record to indicate compliance of Section 138C(4) of the Act, 1962 in substance. 15. She would further submit that the documents collected from the electronic devices owned by the assessees at the time of search have been duly acknowledged by the assessees in their statements recorded under Section 108....
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....nsisting of documents in the form of Record of Proceedings dated 06.07.2015, 21.07.2015 and 21.04.2016 respectively. 19. The Record of Proceeding dated 06.07.2015 reads thus:- "In connection with the investigations in respect of imports made by M/s Suresh Kumar & Co. (Impex) Pvt. Ltd. (SKCO) A-17, Sonu Tower, IInd Floor, Dr. Mukherjee Nagar Commercial Complex, Delhi-110 009, the officers of Directorate of Revenue Intelligence (Hqrs.), 7th floor, I.P. Bhawan, I..P. Estate, New Delhi (herein after referred to as the DRI) vide Panchnama dated 16.06.2015 drawn at office-cum-godown Building No. 1092, Bhalswa Village, Near Azadpur Bypass, Delhi-110 033, had resumed certain documents, Lenovo Make desktop and one laptops from the abovementioned office-cum-godown premises. 2. In today's proceeding, it was proposed to take the printouts of documents from the external Hard Disk of make WD Elements, bearing S/N WXE1A255RF18, which was copied under Records of Proceeding dated 19.06.2015 and 23.06.2015. Shri Sanjay Gupta, Senior Accountant of M/s SKCO and Shri Sushil Kumar, Assistant Accountant of M/s SKCO presented themselves at DRI (Hqrs.) office to witness the proceed....
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.... Delhi - 110054. Another laptop of Sony make was submitted in DRI office by Shri Nikhil Asrani, Director of M/s Suresh Kumar & Co. (Impex) Pvt. Ltd. On 16.06.2015. 2. In today's proceeding. It was proposed to take the printouts of e mail / documents from the external Hard Disk of make WD Elements, bearing S/N WX4 IA45DUD6E, which was copied under Records of Proceeding dated 29.06.2015. Shri Nikhil Asrani, Director of M/s SKCO presented himself at DRI (Hqrs.) office to witness the proceedings. One envelope was produced before Shri Nikhil Asrani which was sealed with a paper slip containing dated signature of Shri Sanjay Gupta and DRI Officer. The paper seals on the said envelops was checked by Shri Nikhil Asrani. which was found intact. 3. Shri Nikhil Asrani removed the paper seal of the said envelop and took out one external Hard Disk of make WD Elements, bearing S/N WX41 A45DUD6E. The said external hard disk was connected to a computer installed in DRI (Hqrs.) office and certain e mail data was extracted in Microsoft Outlook and certain printouts were taken from the said data. The printouts were serially numbered from l to 237. Shri Nikhil Asrani put his date....
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.... 3. Shri Aseem Asrani removed the paper seal of the said envelop and took out one external Hard Disk of make WD Elements, bearing S/N WX41A45DUD6E. The said external hard disk was connected to a computer installed in DRI (Hqrs.) office and certain e mail data was extracted in Microsoft Outlook and certain printouts were taken from the said data. The printouts were serially numbered from 1 t o 97. Shri Aseem Asrani put his dated signatures on all the said pages (s. no. 1 to 97) as a token of their authenticity and his presence during the course of printing of these documents from the said external hard disk. 4. Thereafter, the said external Hard Disk of make WO Elements, bearing S/N WX41A45DUD6E was put in an envelop and the said envelop was sealed with a paper slip bearing dated signatures of Shri Aseem Asrani and the DRI Officer. 5. The proceedings started at 1500 hrs on 21.04.2016 and concluded at 1705 hrs on same day i.e. 21.04.2016. Shri Aseem Asrani on being enquired by the DRI officers informed that he fully agrees to the contents of Records of Proceedings dated 21.04.2016 and that the contents were recorded as per the actual proceedings." 22. Thereafter,....
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....Kumar & Co. (Impex) Pvt. Ltd. I have been staying at the above address for the last ten years along with my parents and brother's family. I am looking after warehousing, logistics and dispatches of M/ s. SKCO." 24. In the last, she invited our attention to the statement of Mr. Suresh Kumar Asrani recorded on 11.09.2015, wherein the following has been stated:- "I and my wife retired from the directorship of M/s SKCO in the year 2008. Thereafter, my sons Shri Nikhil Asrani and Shri Aseem Asrani became the directors in M/ s SKCO. Shri Nikhil Asrani is the responsible for all the imports made by M/s SKCO from 2008. On being asked, I state that my son Shri Nikhil Asrani was dealing with the foreign suppliers related supply of food stuffs and price negotiation etc. On being further asked, I state that M/s S.N. Agrotech was founded in the month of January, 2014 in my proprietorship. M/s S.N. Agrotech has its registered office at 21/31, Mall Road, Delhi working with nil staff. My son Shri Nikhil Asrani is looking after all the work of M/s S.N. Agrotech. On being further asked, I state that this is only a residential flat in the name of myself and my wife Smt. Neerja Asrani.....
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....he statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it." 32. Sub-section 4 of Section 138C makes it abundantly clear that if any statement is to be read into evidence and such documents are computer printouts, then a certificate has to be obtained in accordance with (a), (b) and (c) of sub-section 4, referred to above. 33. The Indian Evidence Act also declares that the expressions "Certifying Authority", "electronic signature", "Electronic Signat....
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.... (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether- (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,- (a) identifying the electronic record containing the statement and describing the manner in which it was produced;....
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...."(i) impotentia excusat legem. (ii) lex non cogit ad impossibilia." 38. Two maxims referred to above have been explained by this Court in the Presidential Poll judgment reported in (1974) 2 SCC 33. 39. We quote para 15 of the judgment referred to above which reads thus:- "15. The impossibility of the completion of the election to fill the vacancy in the office of the President before the expiration of the term of office in the case of death of a candidate as may appear from Section 7 of the 1952 Act does not rob Article 62(1) of its mandatory character. The maxim of law impotentia excusat legem is intimately connected with another maxim of law lex non cogit ad impossibilia. Impotentia excusat legem is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. 'Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him.' Therefore, when it appears that the performance of the formalities prescribed by a statut....