TMI Blog2017 (1) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... ok Jindal Member Judicial Shri K.K. Anand, Advocate for the Applicants Shri H.C. Saini, DR for the Respondent Per Ashok Jindal: The appellant is in appeal against the impugned order wherein demand on duty has been confirmed on account of clandestine manufacture and clearance of the finished goods along with interest and imposing equal amount of penalty. 2. The brief facts of the case are that on 07.02.2002 the factory premises of the appellant was visited by the Preventive department wherein the computer generated statement was seized showing the quantity of MS Ingots received by the appellant from M/s. Ramdevi Steels Pvt. Ltd. (Ramadevi) during the period 15.11.2001-19.12.2001 showing that the appellant has purchased 358.17 MT of MS Ingots from Ramadevi. Thereafter on 06.01.2003 the excise supervisor of Ramadevi, Shri Prakash Srivastva gave a statement wherein he stated that M/s. Ramadevi have sold 1539.35 MT of MS Ingots through 99 invoices to the appellant and also submitted details thereof confirming invoice number, date, quantity and value of the goods. He also commented on the computer print outs and submitted that M/s. Ramadevi have sold only 93.60 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion the Ld. Commissioner (A) held that adjudication order is a cryptic order and directed the adjudicating authority to pass a speaking order but again in the remand proceedings the adjudicating authority passed a cryptic order and same has been affirmed by the Ld. Commissioner (A) and therefore, on this alone ground, impugned order is required to be set aside. 5. He further submits that the sole case is based on the statement of Shri Prakash Srivastava of Ramadevi and the computerized sheets recovered from the factory premises of the appellant. He challenged the genuineness of the computerized sheet recovered from the appellant on the ground that computerized sheet cannot be relied upon as same has been taken a piece of evidence in violation of section 36B of the Central Excise Tariff Act 1944. Therefore, same cannot be admissible evidence. To support this contention he relied on the decision in the case of Anvar PV Vs. AK. Basheer in civil appeal no. 4226/2012 by Hon'ble Apex Court on 18.0902014 . He further submitted that there is no admission by the authorized representative of the appellant that they were indulged in the clandestine activity and manufacture and remov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to as a computer printout ), if the conditions mentioned in sub-Section (2) and the other provisions contained in this Section are satisfied in relation to the statement and the computer in question, shall be deemed to be also a document for the purposes of this Act and the rules made thereunder and shall be admissible in any proceedings thereunder, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in sub-Section (1) in respect of a computer printout shall be the following, namely:- a) the computer printout containing the statement was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; b) during the said period, there was regularly supplied to the computer in the ordinary course of the said activities, information of the kind contained in the statement or of the kind from which the information so contained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. (5) For the purposes of this Section, - a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; c) a document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation, - For the purposes of this Section, - a) computer means any device that receives, stores and processes data, applying stipulated processes to the information and supplying results of these processes; and b) any reference to information being derived from other information shall be a reference to its being derived therefrom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Apex Court reported in 2011 (269) ELTA108 (SC). No efforts has been made out to follow the principle laid down in the case of R A Castings PvtB Ltd. and it has been alleged against the appellant that they have indulged in manufacturing and clandestine clearance of finished goods. In the absence of such positive evidence, the charge of clandestine removal is not sustainable. Further, I find that Ld. Commissioner (A) has sought to rely on the statement of Shri Alok Maheshwari, the charge of clandestine removal cannot be sustained merely on the statement of authorized signatory in the absence of corroborative evidence as held by this Tribunal in the case of Davinder Sandhu Impex Ltd. Vs CCE Ludhiana - 2016 (337) ELT 99 (Tri-Del) wherein this Tribunal observed as under: In this case also, we find that the case has been made out only on the basis of the statement of Shri Baldev Singh, Managing Director of the appellant and no other evidence in the form of to manufacture of such huge quantity, the consumption of electricity, additional packing material, payment for purchase of additional packing material, payment received for clandestine removal of goods, ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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