9911796707
TMI Blog2017 (1) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... through 99 invoices to the appellant and also submitted details thereof confirming invoice number, date, quantity and value of the goods. He also commented on the computer print outs and submitted that M/s. Ramadevi have sold only 93.60 MT of MS Ingots to the appellant. Thereafter, on 13.12.2002 one statement of Shri 0m Prakash Mittal of M/s. Amit Steel Pvt. Ltd. was also recorded who stated that the appellant has purchased CTD bars from them and they have raised only invoices, for that they were being paid commission of Rs. 25 per MT and no actual sale was made to the appellant. On the same day, the statement of Shri Vimal Kant Dave, the transporter, was recorded who stated that he has issued only bank liability on payment of Rs. 100 per bilities but he did not know the name and address of the broker to whom he has given the bilities and he did not know about the vehicle number of the trucks, their owners, operators who has transported the goods or not. Thereafter, on 20.02.2003 & 05.03.2003 statement of Shri Alok Maheshwari, authorized signatory of the appellant was recorded who was shown the statement of Shri Prakash Srivastava and asked certain questions but he said that if all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 by Hon'ble Apex Court on 18.0902014. He further submitted that there is no admission by the authorized representative of the appellant that they were indulged in the clandestine activity and manufacture and removal of finished goods. The case of the Revenue is only on the basis of assumption and presumption. The statement of Shri Prakash Srivastva is without any corroborative evidence. Therefore, the said statement cannot be relied upon. He further submitted that the statement of co-noticees is not relevant in the facts and circumstances of the case. Moreover, the onus of clandestine manufacture and removal of the goods lies on the Revenue and he further submitted that to allege clandestine removal of the goods, no efforts has been made by the Revenue to prove their case. Therefore, impugned order is to be set aside. 6. On the other hand I-d. AR reiterated the findings of the impugned order. 7. Heard both the sides. 8. Considered the submission in detail. 9. I find that the case of the Revenue is based on the computerized sheet recovered from the premises of the appellant and the statement of Shri Prakash Srivastv and Shri Om Prakash Mittal of M/s. Amit Sales Pvt. Ltd. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supplied to the computer in the ordinary course of the said activities, information of the kind contained in the statement or of the kind from which the information so contained is derived; c) throughout the material part of the said period, the computer was operating 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. (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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process. 10. On going through the said provisions, I find that section 36(b)(2) provides the conditions in respect of computer printouts. But, the said procedure has not been followed by the Revenue while relying on the said computer printout. Therefore, the said print outs cannot be the piece of evidence to demand duty from the appellant. Moreover, the appellant during the course of proceedings before the Ld. Commissioner (A) and before the adjudicating authority has contested that the computer print outs are not legible and same has been produced before me which is actually not legible but it is very strange how the Ld. Commissioner (A) should have been able to read out these print outs to confirm the demand on the basis of these computerized print outs. Therefore, as the computer print outs are not admissible evidence, in that circumstances it cannot be alleged that the quantity of MS ingots shown in the computer print outs have been used for manufacturing of finished goods and cleared clandestinely. In the case of R A Cast ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
