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TMI Blog2024 (9) TMI 1257X X X X Extracts X X X X X X X X Extracts X X X X ..... opied as a computer output, shall also be deemed as a document and shall be admissible as evidence without further proof or production of the originals, if the conditions mentioned are satisfied. Section 65B(2) lays down the criteria that must be satisfied for the information to be categorized as a computer output. In the present case, the original electronic record would be the computer of the Election Commission in which the video footage is first stored. The CDs where the content of the video recording is copied shall constitute the secondary copies of the electronic record. It was held that a certificate under Section 65B(4) shall have to be obtained only when the secondary copies of the electronic record are produced before the Court. Production of a certificate shall not be necessary when the original electronic record is produced. The original electronic record can be adduced directly as evidence if the owner of the computer/tablet/mobile phone steps into the witness box and establishes that the device where the information is first stored is owned/operated by him. If the computer where the electronic record was first stored happens to be part of a computer network or comput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant to undervalue and mis-declared the imported goods. The act amounts to committing fraud and fraud vitiates everything. Resultantly there is no infirmity in the findings to this effect in order under challenge. Invocation of extended period of limitation - HELD THAT:- It is established that the importer has manipulated the invoice presented for clearance of goods and mis declared the value in the Bill of entry by suppressing the actual invoice, which could only be unearthed during investigation. The mis-declaration of value of imported goods is thus apparent and has been done with clear intent to evade customs duty. The importer has violated provisions of Section 17(1) and Section 46 of the Customs Act, 1962 by not filing truthful declarations in Bills of Entry and proper self-assessment. Therefore, for the aforesaid acts of suppression of facts and mis- statement, the extended period of five years for demand of customs duty under sub-section 4 of Section 28 of the Customs Act, 1962 is invokable in this case. The importer is liable to pay differential duty of Rs.2,54,09,167/- under Section 28(4) along with applicable interest under section 28AA of the Customs Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were issued by M/s. Sanyuan Group Holding Co. Ltd., China. The company is admitted by appellant to be its exporter. Comparing those documents revealed that invoices number, invoice date, container number, description of items, quantity etc. were almost same except for the value of the goods which was much lesser than Chinese Yuan (RMB) thereby reflecting that the importer had undervalued the goods with an intent to evade the payment of customs duty. It was also found that the consideration over and above the mentioned sale price was sent to the Chinese supplier through illegal means by the appellant. After conclusion of the investigation and recording the statements of several others concerned and involved that the Show Cause Notice No. 30035 dated 01.10.2018 was served upon the appellant alleging that appellant has fraudulently imported goods on the basis of fake/forged invoices. Resultantly, the differential customs duty amounting to Rs.2,54,09,167/- on the basis of 23 Bill of Entries as mentioned in the show cause notice was proposed to be recovered from the appellant. Penal action was also proposed against the proprietor of the appellant under Section 112(a)(i) and (ii), 114A a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s COMMISSIONER OF C. EX. CUS., BBSR-II-2016 (339) .L. . 310 (Tri. Kolkata) copy of which is annexed as Annexure A-3. (iii) MAGNUM STEELS LTD. Versus COMMISSIONER OF CENTRAL EXCISE, INDORE - 2017 (358) .L. . 529 (Tri. -Del.). 4.1 Learned counsel impressed upon that though the show cause notice proposes that the re determined value should be accepted as true transaction value under Rule 3 of CVR, 2007 read with Section 14(1) of the Customs Act, 1962 but that legislative mechanism as laid out in Section 14 ibid read with CVR, 2007 do not provide for such rejection and re determination. Section 14(1) as well as Rule 3 of CVR, 2007 mandate acceptance of transaction value if any of the exceptions stated therein are not attracted. In the event, the case falls under any of the exceptions stated therein, the declared value may be rejected and the value has to be re determined in accordance with the provisions of CVR, 2007 adopting first Rule first. Learned counsel has relied upon the decision of Hon ble Supreme Court in the case of Eicher Tractors Ltd. Vs. Commssioner of Customs, Mumbai 2000 (122) ELT 321 (SC). There is no statutory provision which empower the proper officer to substitute t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms valuation (determination of value of imported goods) Rules, 2007 Read with Section 14 (1) of the Customs Act, 1962 and re- determine the true transaction value as Rs.10,87,02,770 under Rule 3 of Customs Valuation Rules, 2007. Accordingly, the appeal is prayed to be dismissed. 6. Having heard the rival contentions, perusing the entire records, we observe and hold as follows: 6.1 The foremost technical ground taken by the appellant is that the entire document relied upon by the department was the electronic evidence retrieved from the appellant s e-mail. It being an electronic evidence compliance of Section 138C of the Customs Act was utmost necessary. In absence of the certificate as required under the said section, the entire document relied upon by the department becomes inadmissible into evidence. The confirmation of demand has been challenged on this ground. To adjudicate the said point, we foremost need to look into the Section 138C of the Act: 138C. Admissibility of micro films, facsimile copies of documents and computer print outs asdocuments and as evidence. (1) Notwithstanding anything contained in any other law for the timebeing in force, (a) a micro film of a document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions in Section 65-B of the Evidence Act. (ii) Shahfi Mohd. v. State of Himachal Pradesh (2018) 2 SCC 801 it is held: That Section 65B is merely a procedural provision, and the requirement of obtaining a certificate can bedispensed with when the electronic device storing the records is inaccessible to the person who needs to obtain the certificate. (ii) Tomaso Bruno v. State of Uttar Pradesh (2015) 7 SCC 178 wherein it is concluded that Section 65B was not a complete code, without making any reference to the earlier decision in Anvar v. Basheer. 6.3 In Arjun Vs. Kailash (supra) the decision has in Tomaso Bruno (supra) been held per incuriam. Under Section 65A of the Evidence Act, the contents of electronic records have to be proved as evidence in accordance with the requirements of Section 65B. Both Sections 65A and 65B were inserted through the Indian Evidence (Amendment) Act, 2000, and form part of Chapter V of the Evidence Act, which deals with documentary evidence. In Anvar v. Basheer, it was clarified that as Section 65B begins with a non- obstante clause, if forms a complete code for the admissibility of electronic evidence. 6.4 Under Section 65B(1), any information containe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enario, the Supreme Court had to interpret Section 65B(4) for determining the following issues: Whether a certificate under Section 65B(4) must be produced even when an original record of the electronic evidence is available, or does it have to be given only when a secondary record of the electronic evidence is produced? Whether compliance with Section 65B(4) is mandatory even in a situation when it is not possible to obtain the certificate from the competent entity? 6.8 The lead opinion was delivered by Justice Nariman and a concurring opinion was delivered by Justice V Ramasubramanian. Justice Nariman noted that Section 65B(1) differentiates between the original electronic record, which is contained in the computer in which the information is first stored and the secondary copies that are made from the primary electronic record. For instance, in the present case, the original electronic record would be the computer of the Election Commission in which the video footage is first stored. The CDs where the content of the video recording is copied shall constitute the secondary copies of the electronic record. It was held that a certificate under Section 65B(4) shall have to be obtain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the certificate under Section 65B(4). The judgment clarifies that requirement of certificate under Section 65B (iv) of the Evidence Act is unnecessary if the original document itself is produced. 6.11 At this juncture, it is also important to refer to Section 62 and 63 of the Evidence Act. Section 62 defines the term primary evidence which means the document itself i.e. produced before the court. Under Section 63, secondary evidence includes copies made from the original, certified copies, oral accounts of the contents of a document etc. The Hon ble Apex Court while applying those provisions vis- -vis electronic record has held that the production of certificate shall not be necessary when the original electronic record is produced which can directly by adduced as evidence if the owner of the computer/tablet/mobile phone steps into the witness box and establishes that the device where the information is first stored is owned and operated by him. If the computer where the electronic record was first stored happens to be a part of computer network or computer system (as defined under Information Technology Act, 2000) and it is not possible to bring such a network/system physi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoice number, invoice date, container no., description of items, quantity and value of imported goods in Chinese currency RMB. (e) These excel sheets have the word invoice duly mentioned on top of all documents. (f) Entire above description is found same as declared in the Bills of Entry filed by the appellant. (g) The emails consisting of these documents were received through China. (h) The said excel sheets, also mention (i) total cartons loaded and (i) total cartons shown on BL. 6.14 Despite these admitted facts, we find no proof from appellant to falsify invoices retrieved showing item details, deposits adjusted and also the actual cartons loaded compared with cartons shown in BL and to prove that there invoices have no relation to the invoices filed by the appellant-importer with Bills of Entry. It has already been observed as admitted fact that details of both set of invoices (retrieved and those filed with Bills of Entry) have absolute similarity vis- -vis all details of the impugned imported goods except the values have been reduced and goods are declared as unbranded. The documents of comparison based whereupon the demand has been raised and confirmed as retrieved from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of facts and mis- statement, the extended period of five years for demand of customs duty under sub-section 4 of Section 28 of the Customs Act, 1962 is invokable in this case. Therefore, importer is liable to pay differential duty of Rs.2,54,09,167/- under Section 28(4) along with applicable interest under section 28AA of the Customs Act, 1962. The contention of importer that BEs once assessed cannot be re- assessed is not tenable as demand of duty short paid can always be made under section 28 within the period of limitation prescribed therein. 6.18 This contention is not acceptable even in view of Section 149 of the Customs Act, 1962 which talks about amendment of documents and reads as follows: 149. Amendment of documents. - Save as otherwise provided in sections 30 and 41, the proper officer may, in his discretion, authorise any document, after it has been presented in the custom house to be amended:Provided that no amendment of a bill of entry or a shipping bill or bill of export shall be so authorised to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse, or the export goods have been exported, except on the basis of docu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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