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TMI Blog2017 (5) TMI 562X X X X Extracts X X X X X X X X Extracts X X X X ..... etrieved from the CD is not admissible to confirm the demand. Whether on the basis of data retrieved from the CD without further investigation, the demand can be confirmed against the appellants or not? - Held that: - In the absence of any corroborative evidence on the basis of the data retrieved from the CD, the demand is not sustainable - Further in the case of clandestine removal of the goods, the matter should be investigated in a prescribed manner - demand set aside. Whether the statement made by Shri Arun Kheria during the course of investigation on 17.2.2005 agreed to duty on the clearance made to Kerala and Tamil Nadu Government is admissible in the facts and circumstances of the case or not? - Held that: - Merely making statement by Shri Arun Kheria does not cast liability on the appellant when the appellant is able to produce requisite certificate under Notification No.108/95-CE for clearances made to Kerala and Tamil Nadu Government. In that circumstance, the demand cannot be confirmed on the basis of statement of Shri Arun Kheria. Whether the penalty can be imposed on the appellants in the facts and circumstances of the case or not? - Held that: - the demands a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e department, the details are reproduced below: A clearances made on CE invoices claiming SSI benefit. B clearances made to Kerala Govt. department directly on commercial invoice C Clearances made to Kerala Govt. department through A to Z Pharma D details of clearances retrieved from CD on 13.4.2005 E details of clearances retrieved from CD on 18.4.2005 F clearances made to Tamil Nadu Govt. department directly on commercial invoice. 3. The show cause notices were issued on the basis of above charges demanding duty from the appellant alongwith interest and to impose penalty on the appellants. 4. The adjudication took place, the demand of duty as stated in the show cause notice was confirmed along with interest and equivalent penalty was imposed on the appellant and penalty was also imposed on the co-appellants. Aggrieved from the said order, the appellants are before us. 5. Learned Counsel for the appellant submits that the appellant is availing the benefit of SSI Notification No.08/01 as amended from to time. It is his submission that the major sale is to Govt. department (almost 80%). The supplies were made to the Kerala and Tamil Nadu Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eavily relied on the statement of Shri Arun Kheria recorded on 17.2.2005 wherein he has agreed to pay duty on the clearances to Kerala and Tamil Nadu Government. In any case, these clearances made by the appellants under Notification NO.108/95 to that extent the certificates have been obtained, therefore, merely relying on the statement liability cannot cast on the appellant. Learned Counsel for the appellant concedes that for certain clearances he is failed to obtained necessary certificate under Notification no.108/95 but it is his prayer that if the said clearances are added to the clearances, the clearances of the appellant shall fall below the exemption limit as prescribed under Notification No.8/01 as amended from to time. In that circumstance, no demand is sustainable against the appellant, therefore, the impugned order is to be set aside and the appeals are to be allowed with consequential relief. 8. On the other hand, learned AR opposed the contention of the learned Counsel of the appellants and submitted that the appellant is availing the SSI exemption by not including the supplies made to various parties and clearing the medicines clandestinely. The major supplies mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances of the case, the appellant is entitled for the benefit of SSI exemption under Notification No.108/95-CE dated 20.11.95 or not? (b) Whether in the facts and circumstances of the case, the data retrieved from the CD seized during the course of investigation is admissible in terms of section 36(b) or not? (c) Whether on the basis of data retrieved from the CD without further investigation, the demand can be confirmed against the appellants or not? (d) Whether the statement made by Shri Arun Kheria during the course of investigation on 17.2.2005 agreed to duty on the clearance made to Kerala and Tamil Nadu Government is admissible in the facts and circumstances of the case or not? (e) Whether the penalty can be imposed on the appellants in the facts and circumstances of the case or not? (a) The demand has been sought on the basis of chart (B C and F) for the clearance made to Kerala and Tamil Nadu Government. 11. It is a fact on record that the supplies made to these government organizations are exempted under Notification No.108/95-CE and to that effect the appellants have produced the certificate from the buyers in terms of Notification No.108/95-CE in reply t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under Notification. Further, they had produced a certificate also from the Project Authority. The mere fact that the said certificate was not countersigned by the Financial Secretary, will not amount to wilfulmisdeclaration by the appellants. It was opened to the department to verify the certificate and demand duty within the time limit prescribed under Section 11A(1) of the Central Excise Act. We set aside the impugned order and allow the appeal. 12. Further, in the case of Dynaspede Integrated Systems Ltd. (supra), this Tribunal has observed as under: 8. In view of the laid down proposition of the Apex Court in the case of Mangalore Chemicals Fertilizers (supra) and also in the Tribunal s judgment rendered in the case of Birla Institute of Technology (supra) we do not find any infirmity in the order passed by the Commissioner. He has rightly followed the judgment and Revenue has not made out any other grounds as to why the said judgments does not apply to the facts of the case. Therefore, while rejecting the stay application, we take up the appeal and respectfully following the judgment noted above we do not find any merits in the revenue s appeal and dismiss the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t satisfy the statutory conditions. He has referred to the relevant provisions of Section 36B of the Central Excise Act which deals with admissibility of computer print-outs etc. as evidence and says that the statement contained in a computer print-out shall be deemed to be a document for the purposes of the Act and the rules made thereunder and shall be admissible as evidence of the contents of its original, if the conditions mentioned in sub-section (2) and other provisions of the Section are satisfied in relation to the statement and the computer in question. Sub-section (2) reads as under :- The conditions referred to in sub-section (1) in respect of 2. the computer print-out shall be the following, namely :- (a) the computer print-out containing the statement was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, there was regularly supplied to the computer in the ordinary course of the said activities, information of the kind cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rance. We find a strong parallel between the instant case and the cited case. Nothing contained in the print-outs generated by Sampath Kumar s PC can be admitted into evidence for non-fulfilment of the statutory conditions. It is also noteworthy that the computer print-outs pertained to the period February, 1996 to September, 1998 only but the information contained therein was used for a finding of clandestine removal of waste and scrap for earlier period also, which, in any case, was not permissible in law. In the result, we hold that the entire demand of duty on waste and scrap is liable to be set aside. 16. Admittedly, the condition of section 36 has not been met out. Moreover, the printouts have been taken in the absence of the appellants and panchnama was drawn. The panchas were not allowed for cross examination by the appellants and the data retrieved from the CD was never confronted with the appellants during the course of investigation. In that circumstance, we hold that the data retrieved from the CD is not admissible to confirm the demand. (c) Whether on the basis of data retrieved from the CD without further investigation, the demand can be confirmed against the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the appellant as chart (D E). 19. Further, we hold that no cross examination of the panchas has been granted, in that circumstance, the panchnama is doubted in view of the decision of the Apex Court in the case of Andaman Timber Industries-2015 (324) ELT 641 (SC), the demand on the basis of chart (D E) is not sustainable. (d) Whether the statement made by Shri Arun Kheria during the course of investigation on 17.2.2005 agreed to duty on the clearance made to Kerala and Tamil Nadu Government is admissible in the facts and circumstances of the case or not? 20. We find that during the course of investigation, Shri Arun Kheria admitted that he will pay duty on the clearances made Kerala and Tamil Nadu Government. Merely making statement by Shri Arun Kheria does not cast liability on the appellant when the appellant is able to produce requisite certificate under Notification No.108/95-CE for clearances made to Kerala and Tamil Nadu Government. In that circumstance, the demand cannot be confirmed on the basis of statement of Shri Arun Kheria. Learned AR heavily relied on the decision of the Apex Court in the case of D.Bhoormull. In fact, the statement made by the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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