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TMI Blog2015 (3) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... d at Rs. 83,248.00, which was seized by the Central Excise officers. The Central Excise Officers also found a data storage in electronic form in the USB drive and obtained a print out from the USB drive with the help of computer expert. On the basis of the said print out, it was ascertained that the appellants during the period 01.04.2005 to 08.02.2006, cleared the goods of Rs. 2,40,37,556.00 and not paid duty after exceeding of value of clearance of Rs. 1 Crore. The Central Excise officers recorded the statements of the partners of the firm and 30 persons, mostly who had purchased the impugned goods, and they admitted the fact of purchasing of goods from the appellant without bills. 3. A show cause notice dt.09.10.2006 was issued to the appellant No.1 and its two partners proposing demand of duty along with interest and imposition of penalty and also confiscation of the goods. The Adjudicating authority confirmed the demand of Central Excise duty of Rs. 23,78,329.00 alongwith interest and also imposed penalty of equal amount of duty on the goods cleared clandestinely and also confiscated the seized goods, released on bond backed by bank guarantee of Rs. 21,000.00 and appropriated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined. It is also submitted that the appellant s clearance value was within the full exemption limit of Rs. 1 Crore and the confiscation of the goods and imposition of fine are not sustainable. There is no evidence of manufacture, clearance, purchase of huge quantity of raw materials, transport documents etc for alleged clandestine removal of goods. Relied on the decision of the Tribunal in the case of M/s Arya Fibres Pvt.Ltd. and others Vs Commissioner of Central Excise, Ahmedabad-II, - 2014-TIOL-15-CESTAT-AHM. The learned Advocate also filed the written submissions along with the case laws. 6. On the other hand, learned Authorised Representative for the Revenue reiterates the findings of the Commissioner (Appeals). He submits that the Commissioner (Appeals) has clearly observed that the evidence in the form of electronic record in USB drive is sufficient to establish the clandestine removal of the goods. It is submitted that the print out of the electronic data contained in the USB drive found at the appellant s premises. Therefore, the appellant cannot dis-own the contents of the print out. Thus, the demand of duty along with interest and penalty are justified. 7. After hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t cash payments. Statement of these 30 persons (most of them Processors) are against their own interest as it makes them liable for penal action for purchasing dutiable goods on which duty was not paid. However, no show cause notice is given to these persons who have admitted to have received the impugned goods without bills. This fact gives credence to the allegations made by the appellant that the statements were not voluntary. It is apparent that the thirty statements have been recorded under a promise that no action shall be taken against them. Under these facts and circumstances, the evidentiary value of these thirty statements is considerably weakened. However, the solid evidence in the form of electronic records (USB Drive) and the computer print out from the same are sufficient to nail the appellant." 9. The Commissioner (Appeals) observed that the evidence in the form of electronic record (USB drive) the computer print out are strong evidence to establish the clandestine removal of the goods. It is seen that the said print out of the data in the USB drive contained the details of raw material and finished goods alongwith the names and addresses of the suppliers and the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 36B requires issue a certificate in this behalf by a person occupying the responsible official position in relation to the operation of the relevant device or the management of the relevant activity (whichever is appropriate) shall be evidence in any matter stated in the certificate and for the purpose of the sub-section, which shall be sufficient for a matter to be stated to the best of the knowledge and the belief of the persons stating it. In the present case, the data was not stored in the computer. It is stated that the computer expert accompanied with the Central Excise officers had taken the print out from the USB drive by connecting to the computer. The officers had not obtained any certificate 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 print out 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 the operation of electronic media. In the case of M/s Premier Instrumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the said activities, information of the kind contained in the statement of the kind from which the information so contained is derived; (c) throughout the material part of the said period, the computer was operation properly or, if not, then any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of the contents; and (d) the information contained in the statement reproduced or is derived from information supplied to the computer in the ordinary course of the said activities." Ld. Sr. Counsel has argued that the above conditions were not fulfilled in respect of the computer print-out taken from the personal computer of Shri Sampath Kumar. It appears from the statement of Shri Sampath Kumar and the averments in the memorandum of appeal that it is an admitted fact that Shri Sampath Kumar was the person having lawful control over the use of the computer. The computer was not shown to have been used regularly to store or process information for the purposes of any activities regularly carried on by the company. It was also not shown that information of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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