2022 (9) TMI 64 - AT - Central Excise

Rectification application - mistake of fact apparent on the face of record or not - Clandestine Removal - demand based on printouts taken from the computer at the factory premises itself during the course of search - HELD THAT - On mere perusal of computer printouts (RUD 8) it reveals that the same is a calculation chart prepared by the Department. This is also clarified in para-4.5 of the show cause notice. It is found that the demand of Rs.3, 03 41, 494/- is not based on relied upon document and such demand has been raised based on the calculation chart prepared by the Department. Admittedly the printouts allegedly recovered on which ld. Authorised Representative wants to place reliance at this stage are not part of RUD. Further there is no certificate to such printouts as required under Section 36B of the Act in absence of which the data retrieved from computer is not reliable as held by the Hon ble Supreme Court in the case of ANVAR P.V VERSUS P.K. BASHEER AND OTHERS 2014 (9) TMI 1007 - SUPREME COURT . There is no merit in the ground taken for rectification by Revenue. It is further found that the panchnama dated 3rd July 2014 which the ld. Authorised Representative wants to rely upon at this stage has neither been relied upon in the show cause notice nor the same was placed before the Tribunal or argued at the time of hearing of the appeal. This panchnama is also not referred in the Rectification Application filed by Revenue. There is no mistake in the final order of this Tribunal - rectification application dismissed.

Summary

Issues:
Rectification of Final Order based on incorrect facts regarding the demand of duty and documents relied upon.

Analysis:
The Revenue filed miscellaneous applications against the Final Order passed by the Tribunal allowing the appeals in part. The Revenue contended that the Final Order was based on incorrect facts related to the demand of duty. The Revenue argued that the demand was framed based on printouts from the computer at the factory premises during a search on 05.05.2014, not on 04.07.2014 as mentioned in the Final Order, highlighting a mistake of fact.

During the proceedings, the Revenue's Authorized Representative emphasized that the Tribunal wrongly considered certain documents and evidence, urging for the Final Order to be recalled. The Tribunal directed the Revenue to produce specific documents retrieved from the computer of the appellant, but the produced documents did not align with the demands made by the Revenue.

The appellant's Advocate argued that the printouts relied upon by the Revenue were not authored by the appellant but were calculation charts prepared by the Department during the search/investigation. The Advocate highlighted that the demanded duty cannot be confirmed solely based on such calculation charts, emphasizing the necessity for primary documents and proper certification under the law.

The Tribunal, after considering the arguments, found that the demand was not based on reliable documents and lacked the necessary certification under the law, making the data retrieved from the computer unreliable. The Tribunal also noted that the additional panchnama presented by the Revenue was not part of the show cause notice or the appeal proceedings, leading to the dismissal of the Rectification Application by the Revenue.

In conclusion, the Tribunal held that there was no mistake in the Final Order, dismissing the Revenue's Rectification applications for lacking merit. The Tribunal emphasized the importance of reliable evidence and proper adherence to legal requirements in confirming duty demands, maintaining the integrity of the judicial process.

Judgment:
The Tribunal dismissed the Rectification applications filed by the Revenue, upholding the Final Order and emphasizing the importance of reliable evidence and legal compliance in duty demand cases.