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2019 (2) TMI 934 - AT - Central ExciseClandestine removal - MS Ingots - failure on the part of Revenue to prove the clandestine activity - admissibility of evidences - Section 36B of the Central Excise Act. Held that:- The grave misconduct alleged in this case is clandestine removal and hence, the burden is always on the Revenue to establish the same, if not with mathematical precision, but, at least beyond reasonable doubts. Persons whose statements are recorded have retracted and such retractions find place in the record. On a perusal of the statements, even they are not leading us anywhere since no one has spoken as to him witnessing any event : even the Mahazar is not beyond suspicion. In this context, Ld. Advocate’s argument deserves merit when he says that the seizure of pendrive was from the personnel and that the same was not attached to any computer; that nowhere in the panchanama/Mahazar do we find the make of pendrives. Hence, the allegation of clandestine removal is not made out beyond doubts. Admissibility of evidences - Section 36B of the Central Excise Act - Held that:- Section 36B of the Central Excise Act which plays a crucial role requires the Revenue to comply with its requirements when it comes to the admissibility of evidences in the form of micro-films, facsimile copies of documents and computer printouts - On a careful analysis of the basic requirement of Section 36B, what it requires as evidence is a document, may be a micro-film or facsimile or a statement contained in a document and included in a printed material produced by a computer. Therefore, it clearly has the effect of excluding any other thing other than a document, that is to say, it excludes any material or thing other than documents. We are therefore constrained to hold that the pendrive(s) not being a document should also get excluded from the provisions of Section 36B(1). In this case, we do not find either in the statements of any persons or by means of any independent investigation by the Revenue as to who was actually having lawful control over the use of the computer. This assumes importance especially when the case of the assessee is that the pendrive seized was a standalone pendrive, not attached or inserted in the computer. As a natural corollary, the printout obtained from the pendrive is not the one covered by Sub- Section (2) as the Revenue has nowhere established that the alleged printout was a result of regular supply in the ordinary course of the appellant’s business. Strangely, the Revenue relies on such printouts, running over one thousand pages, but even then the same is not foolproof since undisputedly, the requirements of Section 36B (4) are not at all complied with. Sub-Section (4) (supra) requires a certificate if a statement is sought to be relied or used as evidence and no such exercise is done by the Revenue. We have come across umpteen number of cases wherein the courts have discorded the computer printouts, but the much worse situation here is that the alleged printouts were not from any computer but from standalone pendrive(s) fed into computer(s) in the office of the DGCEI which is palpably incorrect and susceptible to innumerable doubts. The Revenue has miserably failed to prove clandestine removal and therefore, the impugned demands cannot sustain - appeal allowed - decided in favor of appellant.
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