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2019 (1) TMI 770 - AT - Central ExciseClandestine removal - demand based on data / computer print outs retrieved from the computers which was used in head office / factory etc. - Admissibility of micro films, facsimile copies of documents and computer print outs as documents and as evidence - Section 36B of the Central Excise Act, 1944 - Held that:- The mahazars dated 11.9.2007 and 17.9.2007 prepared at the appellant premises and office of DGCEI respectively would show that employees of the appellant viz. Ashok Kumar, Anil Kumar, Selvaraj were present. They have endorsed signature in the mahazar. The question is whether such endorsement of signature would fulfill the condition required in sub-section (4) of Section 36B. Any statement / print out taken out of the computer would be admissible in evidence only if it is supported by a certificate as required under sub-section (4) of Section 36B. There is no such certificate stating that it is prepared as per the requirement of Section 36B. Further, though all the persons who have endorsed signature in the mahazar dated 17.9.2007 at the office of DGCEI were present at the appellant’s premises on 11.9.2007 at the time of search, instead of retrieving the data from the appellant premises itself, the computers as a whole have been seized and taken to the office of DGCEI. Thus, evidently, the Commissioner admits that the condition in Section 36B have not been complied with respect to the data retrieved from the computer. On such score, the evidence said to be retrieved from the computer cannot be relied upon at all. The ld. AR has argued that even though the computer print outs are not admissible in evidence, the statements of the witnesses would support the computer print outs and therefore the evidence of clandestine manufacture and clearance is established. The statements of persons have to be subjected to examination-in-chief as well as cross-examination as per the provision under section 9D of Act in order to be admissible as evidence. The statements cannot be considered as standalone documents to prove the allegations in the show cause notice. The evidence put forth is too flimsy to establish a serious charge of clandestine manufacture and clandestine clearance of goods. Though the department need not establish clandestine clearance with mathematical precision, the evidence should establish a probability of such clandestine clearance. On appreciating the facts of the present case, the Commissioner himself having found that the main evidence relied for quantification of duty i.e. computer print outs being not admissible in evidence, the demand could not have been confirmed. The department has miserably failed to establish the allegations raised in the show cause notice - appeal allowed - decided in favor of appellant.
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