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2013 (11) TMI 685 - AT - Central ExciseUndervaluation of goods - Differential cost collected by cash – Unaccounted purchase of raw materials - Assessee is in the manufacture of decorative plywood - Revenue was of the view that the appellant had under invoiced their final product - Revenue relied upon the data retrieved from the seized personal laptop of Shri Jitendra Kejriwal – Held that:- The evidence relied upon by the department, does not lead to the inevitable conclusion of such clandestine activities of the assessees and on the other hand the evidence produced by the appellant M/s SBL, which is in the shape of the exculpatory statements of 16 distributors, the evidence of sale price of identical goods by the other plywood manufacturers, continuation of the sale of their final product at the same price post June, 2005, establishes the case in their favour - failure of the Revenue to investigate the matter, in detail as regards the cost structure of their goods, price factor of the other manufacturers, the availability of any evidence reflecting upon cash receipt by the appellant from the distributors and further cash sales by the distributor to their dealers, the ultimate sale price of the product etc. etc. demolishes the Revenues case against the assessee – there are no justifiable reasons to uphold the demand of duty against M/s SBL or to impose any penalty upon them – thus Penalty imposed upon the Managing Director set aside. Information retrieved from laptop admissible or not - Whether the information retrieved from the personal laptop of Shri Kejriwal, which was purchased only 4 months prior to the seizure, at his back by the GEQD after a period of one and a half years can be considered to be a sufficient evidence for confirmation of demand for the entire period of March 2002 to June 2005 – Held that:- Relying upon S. Namasivayam vs. CC, Chennai [2009 (1) TMI 238 - CESTAT, CHENNAI] - Jumbled up retrieved data, without any reference to the decoding of the same etc. by itself cannot be considered to be the relevant evidence, especially when the appellant has disowned the same, attributed the allegation of fabrication and the same being not clear entries in the records - the provisions of Section 36A readwith Section 36B of the Central Excise Act, 1944 are not invokable in respect of the computer printout, generated by the GEQD from the personal computer/laptop seized - the Revenue’s reliance on the retrieved data by GEQD cannot be held to be an admissible piece of evidence so as to rely upon the same for arriving on the findings of under valuation – Decided in favour of Assessee.
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