2024 (1) TMI 772 - CESTAT AHMEDABAD

Clandestine Removal - non-production of corroborative evidences to prove that the appellant has manufactured such huge quantity of final product - reliability and admissibility of computer print out as an evidence in terms of Section 36B of Central Excise Act - HELD THAT:- Section 36B(2) provides the conditions in respect of computer printouts. In the present matter the computer was not shown to have been used regularly to store or process information for the purposes of any activities regularly carried on by the appellants. It was also not shown that information of the kind contained in the computer printout was regularly supplied by the appellant to the computer in the ordinary course of activities. Again, it was not shown that, during the relevant period, the computer was operating in the above manner properly. The above provision also casts a burden on that party, who wants to rely on the computer printout, to show that the information contained in the printout had been supplied to the computer in the ordinary course of business of the company. We find that none of these conditions was satisfied by the Revenue in this case.

In the present case, the data was not stored in the computer but the officers had taken the printout from the Hard Disk drive by connecting to the computer. The officers had not obtained any certificate as required under Section 36B of the said Act. It is also noted that none of the conditions under Section 36B(2) of the Act, 1944 was observed.

The provisions of Section 65B of Indian Evidence Act and Section 36B of Central Excise Act, 1944 of the Act are pari-materia. It is evident from the panchanama, and the appeals records that the investigating officer had failed to follow the safeguard as mandated under Section 36B of the Act.

In the present matter there is no supportive evidence found by the revenue with regard to receipt of inputs, place from where inputs are purchased, nor there is shortage of inputs as per raw material accounts, electricity consumption have not been challenged to show that there was excess consumption. Further production capacity of the appellant not challenged by the revenue. It became apparent that the department has not led any corroborative evidence to support the allegations of clandestine clearance. There is no evidence regarding procurement of raw material, transportation of raw material, payment for unaccounted raw material and its transportation to sustain the allegation of clandestine manufacture and removal by the appellant. No evidence has been led by the Department to show that the appellant had sufficient production capacity to produce the quantity of goods alleged to have been produced clandestinely - It is now a settled position of law that mere slips/chits are not sufficient for the purpose of confirming the allegation of clandestine manufacture and removal of goods.

In an identical matter the Tribunal in the case of K. RAJAGOPAL VERSUS COMMISSIONER OF CENTRAL EXCISE, MADURAI [2002 (1) TMI 151 - CEGAT, CHENNAI] also held that the entries made in the private note books or chits is not a conclusive piece of evidence to prove clandestine removal unless the scribe of note book are examined and other corroborative evidence processed in the matter.

In the present matter department alleged that there was shortage of 550Kgs. of Billets as per the Daily Stock account and as per the actual stock during Panchanama. However on going through the said panchnama we noticed that nowhere it has shown in the panchanama whether any stock taking has been taken place. There is no any weighment slip. Moreover, inasmuch as there is no evidence that said shortages are on account of any clandestine removal - It is a well settled position of law that serious allegation cannot be made merely on assumptions and presumptions and in the absence of detailed supporting evidence, the charge of clandestine removal cannot be upheld.

The impugned order cannot be sustained and accordingly the same is set aside - Appeal allowed.