TMI Blog2024 (4) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... hat a prudent man may, on its basis, believe in the existence of the fact in issue and had hinted at Section 106 of the Indian Evidence Act in an indirect way, as could be noticed from the submissions of Learned Authorised Representative, the Revenue has clearly established a case of clandestine removal against the Appellant and following decision of this Tribunal at Allahabad passed in the same M/s. Kamdhenu Ispat Ltd. matter in respect of another Franchise named Advance Impex Pvt. Ltd., the liability in the nature of duty, interest and penalty on the Appellant Company, as being confirmed by the learned Commissioner, is confirmed. Having regard to the fact that personal involvement of the present as well as previous Director is not made out from the materials available on the record and the present Director is In-charge of the company, which is having another Excise registration number, against whom no proceeding for the shortage of raw material discovered in 2011 has been initiated and there is specific observation by the Commissioner that the previous Director was responsible only for day to day activity of the Appellant Company, the findings in confirming penalty on both Samir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter printouts, without following the requirement of Section 36B of Central Excise Act 1944, demand was raised by computing minimum amount of royalty @4,00,000/- per month paid for lesser production after making a presumptive production calculation by dividing Rs.200/- as per M. Tonne royalty meant for each TMT Bar manufactured with Kamdhenu logo and the difference of presumptive calculation vis. a. vis. production report, as per return submitted by the Appellant, has been treated as clandestine removal. In placing reliance on the case laws of Anvar P.V. Vs. P.K. Basheer reported in (2014) 10 SCC 473 and the latest one passed in the case of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Ors reported in AIR 2020 SC 4908 on the evidenciary value of electronic evidence, he further submitted that Hon'ble Supreme Court is consistent in its finding that without meeting the requirement of mandatory certification, as required under Section 65B of the Indian Evidence Act, 1872 which is pari Materia to Section 36B of the Central Excise Act, 1944, those printout/documents can t be admitted as secondary piece of electronic evidence. In support of his stand, he has also referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t reference to actual involvement and nature of illegality done by the Director Samir Bhagat, penalty was imposed on him that is also required to be set aside. 4. In response to such submissions, learned Authorised Representative for the Respondent-Department Mr. Xavier P.M. Mascarenhas argued in support of the reasoning and rationality of the order passed by the Commissioner and took us to para 12 of the show-cause notice to substantiate that there was shortage of 157MT M.S. billets in the factory premises of the Appellant that refutes the plea of innocence of the Appellant. He further submitted that learned Counsel for the Appellant has not brought any fact on record to show how the conditions of Section 36B(2) are not fulfilled and the onus lies on the Appellants to establish that the provisions were violated, which is apparently found missing in the defence plea. Placing reliance on the judgement of this Tribunal passed in the case of M/s. Advance Impex Pvt. Ltd. Vs. Commissioner of Customs, Central Excise Service Tax, Hapur Commissionerate - [2019 TIOL- 1249-CESTAT-ALL], in which allegation of clandestine removal on the basis of royalty paid to the same Kamdhenu trade mark was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Indian Evidence Act in 2000AD but going by the Provision of Section 65B it is very much clear that requirement of a certificate as contemplated in Sub-Section 4 relates to a statement of evidence purported to have been signed by a person operating the relevant computer device or is responsible in his official capacity for its management and then only the said statement (print-out) is to be taken in evidence without production of the original and once this condition is fulfilled, there is no requirement of any further proof as indicated in Sub-Clauses 1 of Section 65B and in the instant case, it relates to Section 36(4) and Section 36(1) of the Central Excise Act respectively. The case record is silent about availability of such certificate nor Appellant has ever sought for such certificate from the person who operated the computer or was responsible for its operation and management but Appellant has indicated in his submissions made before the Commissioner that those 94 pages of print-outs, attached to the Show-cause were not certified by the forensic expert nor report from the forensic expert explaining the outcome of forensic investigation has been appended to the Showcause and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility of electronic record by way of corroboration or of production of original record. However, relaxation was granted to the Court to exercise discretion in relation to civil cases in accordance with Law, requirement of justice and on facts of each case (para 50 of the said judgment). We are, therefore, of the considered view that without any reference to the existence of such certificate being obtained from the persons handling the computer or managing the same those printouts can be taken as corroborative piece of evidence, if the allegations are otherwise substantiated. 8. In the submissions made before the Adjudicating Authority, Appellant-Company had not defended itself against any of the allegations concerning manufacture of the quantity shown in the Show-cause notice as found from the computer print-out nor about the amount paid by them as royalty on every month i.e. referred in the table copied into the Show-cause. On the other hand, it has stated that authentic copy of forensic certificate was not provided to them and even their own letter dated 24.09.2012 copy that was taken as relied upon document at Serial No. 6 of the Show-cause notice was not also given to them, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine removal against the Appellant and following decision of this Tribunal at Allahabad passed in the same M/s. Kamdhenu Ispat Ltd. matter in respect of another Franchise named Advance Impex Pvt. Ltd., we confirm the liability in the nature of duty, interest and penalty on the Appellant Company, as being confirmed by the learned Commissioner. However, having regard to the fact that personal involvement of the present as well as previous Director is not made out from the materials available on the record and the present Director is In-charge of the company, which is having another Excise registration number, against whom no proceeding for the shortage of raw material discovered in 2011 has been initiated and there is specific observation by the Commissioner that the previous Director was responsible only for day to day activity of the Appellant Company, we are not agreeable to the findings in confirming penalty on both Samir Bhagat and Raman Gupta. Hence the order. THE ORDER 10. The appeal of Appellant Company bearing Excise Appeal No. 88418 of 2014 is dismissed and the order passed by the Commissioner of Customs, Central Excise Service Tax, Aurangabad vide Order-in-Original No. 42/C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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