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2018 (11) TMI 1033 - AT - Central ExciseClandestine removal - shortages of raw material and finished goods - demand based on printouts of data retrieved from CPU - statement of various persons - admissible evidence or not - allegation that CPU contained software enabling generation of same number of invoice repeatedly - admissible in respect of expert opinion or not. Held that:- Hon'ble Allahabad High Court has ruled in the case of Commissioner of Central Excise, Meerut-I vs. Parmarth Iron Pvt. Ltd. [2010 (11) TMI 109 - ALLAHABAD HIGH COURT] held that if Revenue chooses to rely on the statements then in that event the persons whose statements are relied upon have to be made available for cross examination for the evidence or statements to be considered - further, Hon'ble Supreme Court in the case Bareilly Electricity Supply Co. Ltd. [1971 (8) TMI 221 - SUPREME COURT] has ruled that if a letter or other document is produced to establish some evidence which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity accorded to the Opposite Party who challenges this fact and that the same is in accordance with the principle of natural justice as also in accordance with the procedure under order 19 of the Civil Procedure Code and the Evidence Act. Section 45A of Evidence Act, 1872 requires opinion of examiner of electronic evidence in respect of any matter relating to any information stored in any computer resource - Shri Vinod Kumar Mishra and the other transporters were not produced for cross examination by the appellant and that it was responsibility of Revenue to produce them for cross examination since same were prosecution witnesses. In the present case, therefore, the statements given by Shri Vinod Kumar Mishra and other transporters cannot be relied for arriving at any decision against the appellant. Further the allegations were that the computer printouts were perused and signed by Shri Vinod Kumar Mishra and the contention of appellant was that Shri Vinod Kumar Mishra was not produced for cross examination. Therefore, the printouts are doubtful as evidence. Further, in the absence of expert opinion by examiner of electronic evidence the allegations that the computer was capable of repeatedly generating invoices with the same number is not established beyond doubt. The allegations made against the appellant are not sustainable - appeal allowed - decided in favor of appellant.
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