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TMI Blog2024 (8) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... condition precedent to the admissibility of evidence by way of electronic record. Oral evidence in the place of such certificate will not suffice as Section 65B(4) is a mandatory requirement of the law. The judgment is of relevance to this case as section 138C of the CA 1962 is pari materia to the said section 65B of the Evidence Act. Hence a written certificate under section 138C(4) is a sine qua non for admissibility of such electronic evidence under the CA 1962 also. Consequent to the judgment in ANVAR P.V VERSUS P.K. BASHEER AND OTHERS [ 2014 (9) TMI 1007 - SUPREME COURT] , some confusion arose over the scope and ambit of Section 65B of the Evidence Act as different views were taken in a few subsequent decisions of Constitutional Courts namely, the Hon ble Apex Court judgments in SHAFHI MOHAMMAD VERSUS THE STATE OF HIMACHAL PRADESH [ 2018 (1) TMI 1402 - SUPREME COURT] and TOMASO BRUNO ANR. VERSUS STATE OF U.P. [ 2015 (1) TMI 1307 - SUPREME COURT] and the Hon ble Madras High Court judgment in K. RAMAJAYAM VERSUS THE INSPECTOR OF POLICE [ 2016 (1) TMI 1509 - MADRAS HIGH COURT] . The discordance was placed for a resolution before a three-judge bench of the Hon ble Supreme Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellants Shri R. Rajaraman, Authorized Representative for the Respondent ORDER Per M. Ajit Kumar, These appeals are filed against Order in Appeal C. Cus. II No. 439 to 441/2021 dated 31.5.2021 passed by the Commissioner of Customs (Appeals II), Chennai. (impugned order) 2. Brief facts of the case are that the appellant M/s. Media Graphics filed six Bills of Entry for import of Old and Used offset colour printing machines of various brands. A search was conducted at the appellants office premises, by DRI on a reasonable belief that the impugned goods imported by them had been undervalued. Shri Varadharaj partner of the said firm informed the officers, that they were importing second-hand offset printing machines from various overseas suppliers as commission agents and were selling the same to buyers in India. Though the appellants have declared a total assessable value to the customs authority as Rs.1,60,61,285/- for the import of 6 said machines, the value based on materials collected by the DRI, allegedly worked out to Rs.3,16,37,782/-. M/s. Media Graphics thereby appeared to have evaded payment of customs duty to the tune of Rs.41,09,269/- for the period from February 2015 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anardhanan on 16.2.2018 and also the verbatim reproduction of the contents in the statement of the other partner taken on 15.2.2016. Such dictated statements without clear corroborative evidence cannot be relied upon to eject the declared value. He placed reliance on the following judgments of the Apex Court. Commissioner of Customs (Imports) Mumbai Vs. Ganapati Overseas reported in 2023 (388) ELT 802 (SC) and Asst Collector of Central Excise Vs Duncan Agro Industries Ltd. repoorted in 2000 (8) TMI 87 Supreme Court. He stated that print out of the data obtained from mobile phones and hard disks have not been certified as required under section 138 of CA 1962 and hence electronic evidence is not admissible. He stated that totally unconnected pro-forma invoices and quotations were sought to be linked by the department to the actual imports made, based on similarity of dates and without any further investigations with the persons concerned. In the light of unreliability of evidence, the demand for payment of differential duty was not sustainable and consequently the penalties imposed on the firm as well as the partners cannot be sustained. Accordingly, he prayed that the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report of secondhand machinery from a particular Chartered Engineer. The importer shall be free to select any chartered engineer, empaneled by the Custom House for the respective class of goods, if so required. 12. To sum up, the following guidelines shall be followed: a) All imports of second-hand machinery/used capital goods shall be ordinarily accompanied by an inspection / appraisement report issued by an overseas chartered engineer or equivalent, prepared upon examination of the goods at the place of sale. b) The report of the chartered engineer or equivalent should be as per the Form A annexed to this circular. c) In the event of the importer falling to procure an overseas report of Inspection / appraisement of the goods, he may have the goods inspected by any one of the agencies in India, as are notified by the DGFT under Appendix 2G of the HBoP 2015- 20 and Aayat Niryat Forms to FTP 2015-20, as amended from time to time (para 2.59 of Handbook of Procedures 2015-20 refers). d) At customs stations where agencies notified by DGFT are not present, importers may continue to avail of the services of locally empaneled Chartered Engineers. e) In cases where the report is to be prep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd mentioned in the statement of Shri Vardharaj. In two cases the value is based on what was verbally stated by the appellant and recorded in the panchanama and statement. In one case value has been ascertained as per the WhatsApp chats purportedly between the importer and supplier. In short the value of two of the six machines were adopted without any documentary evidence and based on what was verbally stated, which is a procedure neither recogonised by the CA 1962 or CVR 2007. In the case of the value of the other four machines, reliance was placed on printouts of electronic records, from devices statedly recovered during search operations. 8. The impugned order refers to Commercial Invoice KPN-APR08 dated 08/04/2015 for USD 36,000 filed along with BE 9249590 with consignee as Media Graphics, Chennai and states that the same machine was found invoiced vide proforma invoice no #KPN-APR08 dated 08/04/2015 for USD 114,000 addressed to Graphics Printing Press, Madurai. Hence alleging undervaluation. It is seen that the machine described as per Invoice KPN-APR08 is One set of Used Mitsubishi 2F4 offset printing machine with accessories , where as the machine referred to in proforma in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt judgment in K. Ramajyam Vs Inspector of Police [(2016) Crl. LJ 1542]. The discordance was placed for a resolution before a three-judge bench of the Hon ble Supreme Court, in Arjun Panditrao Khotkar Vs Kailash Kishanrao Goratyal, [AIR 2020 SC 4908 / AIRONLINE 2020 SC 641]. The Hon ble Court, after examining the said judgments clarified the binding legal position. The Hon ble Court upheld the Anvar P.V. judgment (supra) while overruling the Shafhi Mohammed s judgement (supra) and made it clear that the certificate must be mandatorily provided as a condition under Sec 65B(4) for admissibility of electronic evidence. The Court also overruled it s earlier decision in Tomaso Bruno (supra) wherein it was held that sections 65A and 65B of the Indian Evidence Act are only procedural provisions, since they are not a complete code on the subject and hence a certificate is not required under Sec. 65B. It also disagreed with the Ramajyam judgment (supra) of the Hon ble Madras High Court, wherein it was held that in lieu of the certificate under section 65B, evidence aliunde (elsewhere) can be given by the person who was in possession of the device. 12. WE find that Section 138C of the CA 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rusing the record of the case, we note that in respect of the electronic documents in the form of computer print-outs from the seized lap-tops and other electronic devices have not been accompanied by a certificate as required by the Section 138 C (2) as above. In the absence of such certificate, in view of the unambiguous language in the judgment of the Honble Supreme Court (supra), the said electronic documents cannot be relied upon by the Revenue for confirmation of differential duty on the appellant. In the present case, the main evidence on which, Revenue has sought to establish the case of under-valuation and mis-declaration of the imported goods is in the form of the computer printouts taken out from the laptops and other electronic devices seized from the residential premises of Shri Nikhil Asrani, Director in respect of which the requirement of Section 138C (2) has not been satisfied. On this ground, the impugned order suffers from un-curable error and hence, is liable to be set aside. 14. In fine we have found that there have been six secondhand machine imported by the appellants. The value for the purpose of assessment as per Rule 3 of CVR 2007, was at the time of import ..... X X X X Extracts X X X X X X X X Extracts X X X X
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