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TMI Blog2022 (12) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... ance on the seized computer print-out, the burden is on the Department to ensure that the requirements of the law as regards its admissibility are fulfilled. Even if the Department did not seize the computer from where the print-out was taken, it would still not relieve the Department, if it seeks to rely on such computer print-out, from the burden of ensuring that the mandatory requirement of Section 36-B(2) read with Section 36-B(4) of the CE Act is fulfilled. If the Department is for any reason not in a position to furnish the certificate as envisaged under Section 36-B(4) of the CE Act, then the person who in charge of the computer and aware of its working would have to give such certificate. The long and short of this discussion is that without a certificate as mandated under Section 36-B (4) of the CE Act, accompanying the computer print-out, it cannot be relied upon by the Department in the adjudication proceedings. Decided in favour of the Respondent-Assessee and against the Appellant-Department - appeal dismissed. - OTAPL Nos. 13, 14, 15, 16 and 17 of 2016 - - - Dated:- 14-12-2022 - THE CHIEF JUSTICE DR. S. MURALIDHAR AND JUSTICE M.S. RAMAN For the Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 15 and 16 of 2016 by the Department. 6. It must be noted at the outset that it has been the contention of Mr. Kartik Kurmy, learned counsel appearing for the Respondent- Assessee, that in each of the Department s appeals apart from OTAPL No 13 of 2016, i.e. OATPL Nos. 14, 15, 16 and 17 of 2016, the amount involved is below the monetary limit set by the instruction dated 22nd August, 2019 read with a Circular dated 26th December 2014 of the Central Board of Indirect taxes and Customs. However, Mr. Ch. Satyajit Mishra, learned Senior Standing Counsel appearing for the Appellant-Department maintains that all the appeals have to be considered together and not in isolation since they all involve connected questions of law. 7. Without entering to the issue concerning monetary limit, the Court has heard all the appeals on merits and accordingly proceeds to discuss the central question that is urged in OTAPL Nos.13 and 17 of 2016, viz., the seizure of a computer print-out of Sunderlal ledger account from the residential premises of the accountant of Shivam Steel Corporation (SSC) which according to the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) as held in its imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf refers to admissibility of computer print outs as documents and as evidence . It is mandatory in terms of Section 36-B (1), for a computer print-out to be admissible without further proof of production of the original, to satisfy the conditions set out in Section 36-B(2) read with Section 36-B (4) of the CE Act. The said conditions are more or less similar to the conditions stipulated in Section 65-B (4) of the EA. The mandatory requirement of Section 65-B (4) was discussed by the Supreme Court of India in Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473. It was held as under in the said judgment: 15. Under Section 65-B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied: (a) There must be a certificate which identifies the electronic record containing the statement; (b) The certificate must describe the manner in which the electronic record was produced; (c) The certificate must furnish the particulars of the device involved in the production of that record; (d) The certificate must deal with the applicable conditions menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter in question; and if such conditions are met, the document shall then be admissible in any proceedings. The words without further proof or production of the original make it clear that once the deeming fiction is given effect by the fulfilment of the conditions mentioned in the Section, the deemed document now becomes admissible in evidence without further proof or production of the original as evidence of any contents of the original, or of any fact stated therein of which direct evidence would be admissible. 33. The non-obstante clause in sub-section (1) makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65-B, which is a special provision in this behalf - Sections 62 to 65 being irrelevant for this purpose. However, Section 65- B(1) clearly differentiates between the original document - which would be the original electronic record contained in the computer in which the original information is first stored -and the computer output containing such information, which then may be treated as evidence of the contents of the original document. All this necessarily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch certificate could be procured by the person seeking to rely upon an electronic record. However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65- B(4) of the Evidence Act, and require that such certificate be given by such person/persons. This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned. This is, of course, subject to discretion being exercised in civil cases in accordance with law, and in accordance with the requirements of justice on the facts of each case. When it comes to criminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the CrPC. 15. Summing up the legal positions, it was held as under: 61. We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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