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TMI Blog2022 (4) TMI 1214X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 65B of the Evidence Act - Section 3 of the Information Technology Act, 2000 - principles of natural justice - section 13 of Customs Act - HELD THAT:- The default position is that the valuation has to be done on the basis of the transaction value and not based on any fixed value. If there are a hundred transactions between the importer and the overseas seller at different prices, for each transaction, the value under section 14 shall be that transaction value. Simply because the price is higher in any particular transaction, such price cannot be applied to other transactions to determine duty. Conversely, the importer cannot claim to pay duty on a lower value than the transaction value in any consignment even if other consignments were sold to the same importer by the same overseas supplier at lower prices. Valuation has to be done for each import as per that transaction value. There is also no provision to take the average price to determine the duty if the transaction values are available. In this case, DRI officers found that the invoice which was presented along with the Bill of Entry was a trader s invoice for a value which was substantially lower than the price at whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... every day for the past five years. Each case must be examined only based on the evidence in it. Since each assessment is a quasi-judicial order based on the transaction value in it, transaction values cannot be rejected under Rule 12 by extrapolations. They can be rejected if the officer has reasonable belief based on the evidence in that case, that the transaction value is not true and accurate - the rejection of the transaction value in the imports covered in Worksheets IIIA and IV of the SCN by extrapolation and re-determination of the value have no legal basis and need to be set aside. Consequently, the demands in these cases by re-determination of the values cannot also sustain. There is nothing on record to show that the procedure prescribed under section 65B of the Evidence Act, section 3 of the Information Technology Act, 2000 or section 138C of the Customs Act were followed. Learned Departmental representative could not also produce anything on record to show that these were followed. Therefore, the pen-drive is inadmissible as evidence despite the vital information which it contained and which was relied upon by the Revenue. The mere fact that there was a difference betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Shri Prem Kumar Sachdev [Sachdev], the authorised signatory of the respondent on 03.03.2016 and recovered, inter alia, some invoices raised by the Chinese manufacturer on Shri Khera, two computer Hard-disks of Western Digital make of 500 GB capacity each, one Kingston make pen drive of 1GB capacity and a Kingston make flash drive of 2GB capacity. They sent the digital media to Central Forensic Science Laboratory [CFSL], Hyderabad for forensic examination and analysis, who retrieved the data and sent their report dated 10.05.2016. 5. After recording statements, scrutinizing the data retrieved by the CFSL from the pen-drive and conducting further investigation, it appeared to the officers of DRI that: a) Shri Sachdev is the authorized signatory of the respondent and his wife and son are its Directors. All the fitness equipment imported from China and Taiwan are sold under the registered brand name 'Aerofit'. Shri Sachdev engaged Shri Khera and as per their arrangement, the manufacturers in China would raise invoices on the companies run by Shri Khera in Taiwan, who, in turn would raise invoices on the respondent. b) The respondent placed purchase orders on the Taiwanese s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 7,77,44,312/-. The total value of the fitness equipment imported by the respondent from 21.10.2011 to 26.02.2016 was calculated as ₹ 250,58,31,276/- (including the above seized goods). 8. The SCN dated 20.10.2018 was issued by the Additional Director General, DRI to the respondents calling upon them to explain as to why differential duties should not be recovered from them under section 28(4) along with applicable interest under Section 28AA and also why the seized goods should not be confiscated under Section 111 and penalties should not be imposed under Section 112(a) and 114A. 9. After following due process, the learned Commissioner passed the impugned order dropping the proceedings in the SCN. 10. This appeal is filed by the Revenue assailing the impugned order. On behalf of the appellant Revenue, the following submissions have been made: (i) The adjudicating authority held in para 70, 71 of the OIO, that the declared value can be rejected by the officer under Rule 12 of the Customs Valuation Rules, 2007 on the basis of certain reasons which may include the significantly higher value at which identical or similar goods imported at or about the same time were ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted itself establishes the relevance of the invoices raised by the manufacturer to the import transaction. Had these invoices been irrelevant to the transaction between the importer and the supplier, the invoices would not have been found at their premises. Smt. D.R. Kavita, Office Executive of the respondent in her statement dated 05.03.2016, stated that they receive the manufacturer's invoices and packing list, along with the invoice and packing list of the trader/supplier to their official mail ID, [email protected]. This reaffirms the relevance of the manufacturer's invoices to the imports made by the respondent. Apparently, these manufacturers' invoices and actual values were the basis for the respondent to work out the differential 'unaccounted' values and make the non-banking payments to the Taiwan supplier Shri Rajan Khera. Hence the said invoices co-relatable with the details in Statement of Accounts form crucial evidence which has not been considered. (v) Further, a corroborative statement of accounts was recovered from the pen-drive seized at the residential premises of Shri Prem Kumar Sachdev, Authorized Signatory of the respondent. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndicative and not exhaustive. The said explanation itself states that the rule only "provides a mechanism and procedure for rejection of declared value in cases where there is reasonable doubt that the declared value does not represent the transaction value". Clause (iii) of the explanation to sub-rule (2) of Rule 12 of the Customs Valuation Rules, 2007 reads, "The proper officer shall have the powers to raise doubts on the truth or accuracy of the declared value based on certain reasons which may include...". It is, therefore, evident that the grounds provided in the said explanation are not exhaustive. Thus, the grounds stated in the SCN are to be considered on their own merits without to whether or not they satisfy or find mention in the indicative grounds listed in the said explanation. (ix) The methodology adopted in the SCN for determining the value under Rule 9 of the Rules is not hit by any of the exclusions stated under sub-rule (2) of Rule 9 ibid. The value of the products mentioned in the invoice issued by the manufacturer cannot be said to be the "price of the goods on the domestic market of the country of exportation". Rather, it is the value of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he valuation rules. Thus, the Commissioner's rejection of manufacturers invoice price adopted by the DRI authority to re- determine the value of imported goods in question is incorrect and the Commissioner's finding that the authorities failed to re-determine the value based on contemporaneous import values will fail. (xi) The agreement dated 06.04.2010 between M/s SOFPL and M/s Lucky Partners Investments Ltd., Argain Company Limited (Taiwan suppliers), to the effect that a quantity discount of a maximum of 35% based on approximate turnover in a financial year would be given by the Taiwan suppliers to M/s SOFPL, was not submitted to the investigating agency nor even referred to remotely, during the course of investigation, despite having ample time and opportunities to do so. Further, in the various statements of the authorized Signatory and employees of M/s SOFPL, recorded under Section 108 of Customs Act, 1962, wherein they have acknowledged the vast difference in value, none had brought up the existence of such an agreement dated 06.04.2010 nor was there any whisper about such an agreement. (xii) Further, the invoices provided to Customs at the time of importation of the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal evidences extracted by the Central Forensic Science Laboratory, Hyderabad were not shared with the importer. Shri Prem Kumar Sachdev vide his statement dated 22.09.2016 recorded under Section 108 of the Customs Act, 1962 (enclosed as Annexure 13 to the SCN) acknowledged that he was shown the examination report dated 10.05.2016 and the contents of the digital evidence extracted from the pen drive and flash drive recovered from his residential premises under Panchnama dated 03.03.2016. (xv) Further, the examination report received from CFSL was provided to the noticees along with the show cause notice as Annexure-4. The copy of the file containing the statement of accounts, extracted from the pen drive was also enclosed as Annexure-12 to the SCN, as a relied-upon document. The same bears the dated signature of Shri Prem Kumar Sachdev on each page with the word "seen" in token of having seen the said document on 22.09.2016 (during the course of his statement dated 22.09.2016). Thus, the adjudicating authority has erred in rejecting the evidentiary value of the data extracted from the pen drive by stating that the analysis report was not shared with the importer. (xvi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f beyond reasonable doubt. The preponderance of probability of amounts paid to the supplier in excess of the declared values is amply established in the facts laid out in the SCN that a) the evidence is recovered from the pen drive found in the residential premises of the Shri Prem Kumar Sachdev the Authorized Signatory of M/s SOFPL during search proceedings; b) the Statement of Accounts found in the pen drive shows that besides the payment through banking channel corresponding to the value declared to Customs, additional payments were made through individuals; c) the individuals are connected with M/s SOFPL and their Authorized Signatory Shri Prem Kumar Sachdev and d) the amounts shown in the debit entry against each invoice number are higher than the values declared to Customs in the same invoice numbers. (xix) The Hon'ble Supreme Court in the case of Anvar P.V. Vs. P.K. Basheer and Others (Page Nos. 22 to 57) examined the evidentiary value of electronic records and upheld its evidentiary value and held as under: "(a). Electronic record produced for the inspection of the court is documentary evidence under Section 3 of the Indian Evidence Act, 1872 (hereinafter referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinary course of the said activities; (c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (e). Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as per an agreement entered into with M/s. Lucky Partners Investments, Ltd., M/s. Power Argain Company and M/s. Best Crown Industries Ltd. all of which belong to Shri Khera and are located in Taipei, Taiwan. Shri Khera procures the goods from the manufacturers and supplies to the Respondent with a quantity discount over the Chinese manufacturer's price based on the turnover assured by the Respondent. Therefore, the prices at which Shri Khera exported the goods to the Respondent were lower than the manufacturer's price. b) The case of the Revenue is based mainly on a Statement of Accounts [SOA] found on a pen drive which was seized during the search of the house of Shri Sachdev. It does not belong to the respondent. No investigation was conducted to find out as to whom the Pen drive belonged to and who authored the entries in the file saved in it. The SOA also contained some names against which cash payments were shown to have been made to Shri Khera which forms the basis of the allegation of the Revenue that additional payments were made to Shri Khera. Neither were the persons named in the file identified nor were they questioned to establish that cash payments were indeed made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant for examining the value in the present case. j) The averment that parallel invoices were recovered from the office of the respondent is not true. Only a few invoices were recovered which are not relevant to decide the valuation in this case. k) The assertion that the differential amounts were paid by the respondent to Khera through non-banking channels is only a presumption and does not survive the test of law. l) The contents of the pen-drive are not admissible for the following reasons: (i) The Hash copy of the contents of the pen drive or a printout of the pen drive was neither taken nor given to Mr. Sachdev during the search of the house and seizure of the pen-drive. (ii) The copy of the report of the CFSL was also not given to the respondent during or after examining him. (iii) The ownership of the pen drive and the author of its contents have not been established. (iv) The alleged contents are not proved to be part of the respondent's business accounts available in office files or office computers. (v) The Computer from the SOA were recovered was neither identified nor certified by any responsible person in custody of such computer. (vi) The contents of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pen-drive, extrapolating similar levels of undervaluation in other clearances where there was no evidence of undervaluation at all in WORKSHEET IIIA. c) In respect of goods not covered by either of the above, the undervaluation was assumed and the values were worked out under Rule 9 of the Customs Valuation Rules, i.e., the method to be adopted when the value cannot be determined under any of the Rules. This differential duty was worked out to ₹ 15,45,74,102/-in WORKSHEET IV. 11. The above three amounts were added and differential duty of ₹ 30,90,80,233/- was proposed to be demanded in the SCN. Thus, of the above, (a) is based on the evidence found in the pen- drive, (b) and (c) are based on projections and extrapolations. 12. Before examining the facts of this case, we examine the relevant legal provisions, viz., Section 14 of the Customs Act, 1962 [Act] and Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 [Rules] . Duties of customs are levied on goods imported into and exported from India at the rates specified in the Schedules to the Customs Tariff Act, 1975. On some goods, the levy is based on quantity (specific duty), and other goods i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds, having regard to the trend of value of such or like goods, and where any such tariff values are fixed, the duty shall be chargeable with reference to such tariff value. Explanation. - For the purposes of this section - (a) rate of exchange" means the rate of exchange - (i) determined by the Board, or (ii) ascertained in such manner as the Board may direct, for the conversion of Indian currency into foreign currency or foreign currency into Indian currency; (b) "foreign currency" and ''Indian currency" have the meanings respectively assigned to them in clause (m) and clause (q) of section 2 of the Foreign Exchange Management Act, 1999 (42 of 1999) 13. The non-obstante clause in sub-section 2 of section 14 gives the Board the power to fix tariff values for any class of goods and if fixed, the tariff value will be the value to determine the duty. This sub-section is not relevant to this case. In all other cases, the value to be reckoned for calculating the Customs duty shall be the transaction value subject to five conditions: a) Buyer and seller are not related. b) Price is for delivery at the time and place of importation, i.e., all cos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of which Rules 1 and 2 are Preliminary rules. Rule 3 states that subject to Rule 12, the value shall be the transaction value adjusted according to Rule 10. Rule 10 provides for certain costs to be included in the transaction value. Rule 12 provides for the proper officer to reject the transaction value if he has reason to doubt its truth and accuracy. Thus, unless the proper officer rejects the transaction value under Rule 12, valuation has to be based on transaction value as per Rule 3 with some additions, if necessary, as per Rule 10. 17. Rule 3 further provides that if the valuation cannot be done under that Rule, i.e., as per the transaction value with additions as per Rule 10, then it must be done sequentially under Rules 4 to 9. In other words, if the transaction value is rejected under Rule 12 and valuation cannot be done as per the transaction value under Rule 3 and it must be done sequentially under Rules 4 to 9. 18. We now proceed to examine Rules 4 to 9. Rule 4 provides for the valuation to be done on the basis of identical goods. Rule 5 provides for the valuation to be done on the basis of the value of similar goods. Rule 6 states if Rules 4 and 5 cannot determine th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alue through deductive method or computational method, then value may be determined through the residual method by the officer following the above principles (Rule 9). 20. The next question which arises is when can the proper officer reject the transaction value. Rule 12 reads as follows: 12. Rejection of declared value. - (1) When the proper officer has reason to doubt the truth or accuracy of the value declared in relation to any imported goods, he may ask the importer of such goods to furnish further information including documents or other evidence and if, after receiving such further information, or in the absence of a response of such importer, the proper officer still has reasonable doubt about the truth or accuracy of the value so declared, it shall be deemed that the transaction value of such imported goods cannot be determined under the provisions of sub-rule (1) of rule 3. (2) At the request of an importer, the proper officer, shall intimate the importer in writing the grounds for doubting the truth or accuracy of the value declared in relation to goods imported by such importer and provide a reasonable opportunity of being heard, before taking a final decision un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is inclusive and not exhaustive. In this case, DRI officers found that the invoice which was presented along with the Bill of Entry was a trader's invoice for a value which was substantially lower than the price at which the trader himself had purchased the goods. Both the manufacturer's invoice on the trader and the trader's invoice on the importer were for exactly the same consignment with the same details as they were back to back orders. In other words, the respondent placed an order for X quantity of goods on the trader in Taiwan and the trader placed an order for the same goods on the manufacturer in China. The goods were shipped directly by the manufacturer from China to the respondent. According to the Revenue, the trader's invoices are fraudulent and manipulated invoices. Insofar as the first part of the demand indicated in paragraph 10 (a) above is concerned, the EXCEL sheets in the pen drive as well as the invoices recovered during the searches form the basis for the doubt. As far as the second and third parts of the demand indicated in paragraphs 10 (b) and 10 (c) are concerned, the doubt is based on projections. 22. The grounds for proposal to reject the transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d value is liable for rejection." 23. The grounds for proposal to re-determine the value as per Rule 9 in the SCN are as follows: "15. In view of the above all the imports made by SOFPL from Taiwan suppliers do not represent the true transaction value and the correct value cannot be determined under Rule 3 of the Valuation Rules. The value of the goods cannot be determined even under Rule 4 and 5 as there are no identical or similar contemporaneous imports declaring the true transaction value. Further, the value cannot be determined even under Rule 7 and 8 for the reason that the exercise determined in respective rule is not possible for the subject goods. Hence the provisions of Rule 9 of the Valuation Rules are applicable. The evidence on record indicates that the goods imported by M/s SOFPL from Taiwan supplier have been consistently under-valued in the range of 55% to 35% of the true transaction value and only 45%to 65%of the true transaction value is disclosed to Indian Customs. The average value declared to Indian Customs is 57.49% of the true transaction value. Hence, for the purpose of determination of value of imported goods for the Bills of Entry for which original Chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction value in terms of Rule 9 of valuation rules and the same is detailed in Worksheet-IIIA/B. The Chinese manufacturer's invoices are annexed to this show cause notice. 15.5 Worksheet-IIIA shows the values shown in the Chinese manufacturer's invoices which are also covered in the statement of accounts contained in the pen drive. Thus the undervaluation in respect of said invoices already stands quantified in Worksheet-II as mentioned above. 15.6 Worksheet-IIIB shows the values shown in the Chinese manufacturer's invoices which are not covered in the statement of accounts contained in the pen drive. As the business pattern remains same and the supplies are from the same Taiwan suppliers represented by Shri Rajan Khera, the undervaluation in respect of said invoices has been quantified based on the averaged margins, as worked out in Worksheet-II as mentioned above. Thus in worksheet-IIIB the value is arrived as per Rule 9 of Valuation Rules taking into consideration the values contained in the Chinese manufacturers invoice and the values contained in the statement of accounts. The average value declared to Customs is arrived at 57.49% of the true transaction value. Adopting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of Shri Sachdev of the respondent and the copies of invoices recovered from the office of the respondent. As for the imports listed in WORKSHEET IIIA to the SCN [ indicated in paragraph 10(b) above] and WORKSHEET IV to the SCN [ indicated in paragraph 10(c) above], they are based on projections and extrapolations. Since the officers found some reason to reject the transaction value in imports covered by WORKSHEET II, it is also proposed to be rejected in the imports covered by the other two worksheets. We do not find any legal provision by which the transaction value can be rejected by extrapolation. As we explained above, each import is an assessment by itself and is appealable and if there are a hundred imports at different transaction values, duty on each import must be determined based on the transaction value of that import. If the transaction value is higher in any one case, that, by itself cannot form the basis for assessment of other imports. Conversely, if the transaction value in any one case is lower, the importer cannot ask for that to be the basis for assessment of all other imports. A single value has to be reckoned for assessment of all imports only if it is a tar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saction value and its re-determination is based on the EXCEL file retrieved by the CFSL from the pen-drive seized from the residence of Shri Sachdev of the importer as well as copies of manufacturer's invoices recovered from the office of the respondent. The undisputed facts are that the respondent placed import orders on Shri Khera's companies in Taiwan who placed back-to-back orders on the manufacturers in China. The consignment was shipped directly from China by the Chinese manufacturer to the respondent. Such transactions are not uncommon in international trade where A places an order on B who, in turn places an order on C and goods get shipped from C directly to A but there will be two invoices one which C raises on B and another which B raises on A. Naturally, in such a transaction, B, as the trader gains some profit by buying from C at a lower price and selling to A at a higher price. Although the goods are shipped directly, consideration for the goods also flows from A (the importer) to B (the trader) and from B (the trader) to C (the manufacturer). 27. What is unusual about this case is that the trader companies in Taiwan have been buying at a higher price from the manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es is to question the importer and if possible the trader and the manufacturer about the apparent anomaly. For an organization like DRI with its Customs Overseas Intelligence Network officers posted in many places including in Hong Kong, such investigation is not impossible. Unfortunately, in this case, in the statements of Shri Sachdev recorded by DRI officers as reproduced in the SCN only record his agreement that the trader's invoice is lower than the manufacturer's invoice (which is a matter of fact evident from the two invoices). He was not asked why. He was not asked as to how his supplier is selling each consignment at a loss of 30%. We also do not find that such a question was put to others whose statements were recorded. If the investigating officers had put this question, the answers to such question would have given them material to investigate if the explanations were correct or a mere hogwash. Instead, the investigating officers concluded that since there are two sets of invoices, the invoice showing lower values is a fraudulent invoice and the assessment must be done as per the manufacturer's invoice. 29. Learned counsel for the respondent also argued that it is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and question these persons so as to establish that the amounts were, indeed paid in cash and if so, by whom, when and where. There is nothing on record to support that cash payments were made other than the entries in the EXCEL file. The persons indicated in the EXCEL file as those who made the payments were not identified or questioned. 31. Learned counsel also argued that the pen drive or any other form of electronic evidence is admissible under Section 138C of the Customs Act but in this case, the procedure prescribed under section 138C was not followed. Reliance is placed on HS Chadha vs Commissioner of Customs [Customs Appeal No. 51768 of 2016 decided by FINAL ORDER NOS. 50063-50066/2020 dated 9.1.2020] to assert that mails and other electronic evidence cannot be relied upon to prove undervaluation in absence of compliance of provisions of section 138C of the Customs Act. Learned counsel also submitted that the fact that all documents were received through bank and all remittances were also made through bank and there is no evidence of any cash generation as certified by the Chartered Accountant cannot be ignored. We find that as far as the amounts paid through banking chan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion fed into 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enerally smaller, set known as "hash result" such that an electronic record yields the same hash result every time the algorithm is executed with the same electronic record as its input making it computationally infeasible- (a) to derive or reconstruct the original electronic record from the hash result produced by the algorithm; (b) that two electronic records can produce the same hash result using the algorithm. (3) Any person by the use of a public key of the subscriber can verify the electronic record. (4) The private key and the public key are unique to the subscriber and constitute a functioning key pair. Customs Act, 1962 Section138C. Admissibility of micro films, facsimile copies of documents and computer print outs as documents and as evidence. - (1) Notwithstanding anything contained in any other law for the time being in force, - (a) a micro film of a document or the reproduction of the image or images embodied in such micro film (whether enlarged or not); or (b) a facsimile copy of a document; or (c) a statement contained in a document and included in a printed material produced by a computer (hereinafter referred to as a "computer pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his section as constituting a single computer; and references in this section to a computer shall be construed accordingly. (4) In any proceedings under this Act and the rules made thereunder 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 document containing the 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. (5) For the purposes of this section, - (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yway. The losing candidate sought to rely on the CCTV footage available with the election commission which was date and time stamped to assert that the nomination was, indeed filed one hour after the last date and time. The election commission did not provide a certificate as required under section 65B but provided the video footage which showed that the nomination was filed late. The returning officer was summoned and had, on oath affirmed that that the video footage pertained to the nomination. The question before the Supreme Court was, whether the video footage can be relied upon in the absence of a certificate under section 65B as held in a previous judgment of a supreme court in the case of Anvar P V vs P K Basheer [Civil Appeal No. 4226 of 2012]. The Supreme Court held as under: 72. The reference is thus answered by stating that: a) Anvar P.V. as clarified by us hereinabove, is the law declared by this Court on Section 65-B of the Evidence Act. The judgment in Tomaso Bruno, being per incuriam, does not lay down the law correctly. Also, the judgment in Shafhi Mohammad and the judgment dated 3-4-2018, do not lay down the law correctly and are therefore overruled. b) The c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contrary, the counsel for the respondent disputes that the pen drive reflects the true transactions. Hence, Arjun Panditrao Khotkar does not advance the case of the Revenue. 36. Revenue has also relied upon the order of this Tribunal in case of Sai Impex vs Collector of Customs [1992(62) ELT 616 (Tribunal)] upheld by the Supreme Court [1996(84) ELT A 47(SC)] to assert that once the manufacturer's invoice is available valuation has to be done as per it and it is not necessary to go into the values of identical goods, similar goods, etc. We find that the order was issued in the context of unamended section 14 of the Customs Act and the corresponding valuation rules. Under the unamended provisions, value of the goods was defined as 'the price at which such goods are ordinarily sold in the course of international trade for delivery at the place of importation' and it was not based on transaction value. Therefore, it was necessary to determine the value at which such goods are ordinarily sold and in that context, the manufacturer's price, if available, was held to be a good indicator and that that one need not go into the prices of identical goods and similar goods. This appeal be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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