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2019 (3) TMI 1444 - AT - CustomsExport of prohibited item - allegation against the appellant is that they have exported rice, pulses and semolina in the guise of non-prohibited items - DGFT N/N. 33/2007, dated 08.10.2007, No.93/2008, dated 04.04.2008 and 15/2006, dated 27.06.2006 as amended - principles of natural justice - Held that:- The foremost point raised by the appellant is that they have not been supplied with copy of the actual invoices submitted by them to the department at the time of export. It is alleged by the department that the invoices submitted at the time of export of prohibited items but appellant has actually exported such items. For this, the proforma invoices retrieved from computer is relied. Thus, it is the case of department that the actual invoices were altered - In the first round of litigation, the appellant had put forward their grievance that they were not supplied the relied upon documents and, therefore, were not able to defend the case. Inspite of specific direction by Tribunal and repeated requests on the part of the appellant, it is seen that the department has not been able to give copies of the relied upon documents. This is clear from the letter issued by the department dated 23.10.2017. When the show-cause notice is issued proposing to impose such huge penalties, the department ought to have taken sufficient care to supply all relied upon documents to the appellants - The adjudication conducted without supply of entire relied upon documents is against principles of natural justice and vitiated. Inspite of the order of the Tribunal the department has given some screen shots only and have not supplied the copy of documents. For this reason itself, the confiscation and penalty cannot sustain. Admissibility of evidences - Held that:- Section 138C of the Customs Act deals with admissibility of micro-film, facsimile, copies of documents and computer printouts, as documents and evidence. The said section provides for certain requirements to be complied to make the statement from the computer to be admissible in evidence. In the present case, there is no certificate produced as required under sub-section (4) of section 138C. The department is founded on suspicion and assumptions and not supported by any material or evidence. So also, the non-supply of documents to the appellant inspite of the direction given in the remand order by the Tribunal has seriously vitiated the proceedings - the department has failed to prove the allegations raised in the show-cause notice - appeal allowed - decided in favor of appellant.
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