TaxTMI 
TaxTMI 
2026 (5) TMI 933
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....f 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. 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/commission agent. Detailed investigation was conducted by DRI including search of registered premises of the appellant company M/s Bhaijaan Stores on 11.04.2017 as well as at the premises of M/s Winsor Enterprises, Mumbai 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 Notice (SCN) vide F. No. DRI/AZU/SRU-22/2017-Bhaijaan dated 23.01.2019 proposing ....
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....Junaid Kudia under Section 114AA ibid. Being dissatisfied with the above order of the original authority, the appellants have preferred appeals before the learned Commissioner of Customs (Appeals), who vide Order-in-Appeal dated 24.02.2023 (which is impugned herein), by upholding the order of the original authority has rejected the appeals filed by the appellants. 2.5 Feeling aggrieved with the impugned order, the appellants have filed these appeals 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 Shri Junaid Kudia, has been treated as de-facto partner of the appellant company and statements were recorded from him on different dates and also from other persons concerned by DRI; these statements had been recorded under duress by the investigation agency and those statements have been retracted by the concerned persons at the first available opportu....
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....tainable. 5. Heard both sides and carefully examined the case records. The additional submissions made in the form written paper book in this case was also perused carefully. 6. The short issue for determination before the Tribunal is that in the facts and circumstances of the present case, whether the demand of differential duty on the imported goods; confiscation of goods and consequently imposition of penalty, is legally sustainable or not? 7. We find that the issue of enhancement of value on the basis of the computer print-outs, documents taken from the premises of M/s Bhaijaan Stores by DRI are the same as relied upon in a similar proceedings separately taken for their sister concern M/s i.e., Plastic Cottage Trading Co., M/s Winsor Enterprises and statements of the partners of the appellant company given before DRI which were retracted by them are also a part 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 impos....
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....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 as evidence. It is noted that the certificate was not prepared during the seizure of the electronic devices, as required under the law. The investigation is normally started after collecting the intelligence/information from various sources. The investigating officers procure the evidences in the nature of documents, statements, etc., to establish the truth. During the evolution of technology, the electronic devices were used as evidence. In this context, the law is framed to follow the procedure, while using the electronic devices as evidence for authenticity of the documents, which would be examined by 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 mere....
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....ven 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., without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice. 16. Only if the electronic record, is duly produced in terms of Section 65B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of Examiner of Electronic Evidence. 17. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, 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 specia....
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.... 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. The Learned AR for Revenue relied upon the decision of the Tribunal in the case of M/s. Laxmi Enterprises (supra), in which the Tribunal has upheld the charge of undervaluation and demand for differential duty. In the said decision, Tribunal overruled the objection of the appellant in connection with Section 138C, by holding that the documents printed out from laptop will be admissible as evidence, in view of the fact that the truth of such documents stand admitted by the proprietor in his statement. We have gone through the said decision of the Tribunal and 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 Le....
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....of imported goods in the present matter is not sustainable. 14. Further, we also find that in respect of disputed imported goods, Bills of entry were already been assessed at the time of importation of the goods and hence, further proposal to re-enhance the value, in the eventuality, when the earlier assessment orders having not been appealed against/reviewed, have attained finality and accordingly, cannot be proceeded with for rejection of the declared value. In other words, there cannot be any re-assessment of the said values, which had become final for want of appeal against the same. Our views are supported by the judgments in case CC v. Lord Shiva Overseas (supra), Malhotra Impex v. Commissioner of Customs, Ahmedabad - 2006 (203) E.L.T. 561 (Tri.-Del.) and Commissioner of Customs (Prev.), v. Paras Electronics - 2009 (246) E.L.T. 231 (Tri.-Mumbai). 15. In view of our above observations and findings, we are of the opinion that the duty demand confirmed against the appellant M/s. Plastic Cottage Trading Co. and penalties imposed upon it is not sustainable. For the same reason, the penalty imposed on the co-appellants namely, Shri Junaid Kudia and Shri Zaid Kudia....