TMI Blog2018 (4) TMI 856X X X X Extracts X X X X X X X X Extracts X X X X ..... the statements. Hence, the evidence of electronic devices, as relied upon by the adjudicating authority cannot be accepted. The demand of duty cannot be sustained, as the evidences as available for the alleged under valuation cannot be accepted under the law, as per the mandates of Section 138 C of the Act - appeal allowed - decided in favor of appellant. - Customs Appeal No. C/51918, 51919, 51920/2017 & E/50095/2018-CU [DB] - Final Order No. 51373-51376/2018 - Dated:- 17-4-2018 - S. K. Mohanty, Member ( Judicial ) And V. Padmanabhan, Member ( Technical ) For the Appellant : Mr.Ashish Batra, Advocate For the Respondent : Mr.R.K. Maji, D.R. ORDER Per : S. K. Mohanty Brief facts of the case are that M/s Suresh Kumar Co. (Impex) Pvt. Ltd., M/s. VPN Trade Links and M/s. S.N. Agrotech were engaged in the business of import of food items from various countries through ICD, Tukhlakabad, Nhava Sheva Port, Mundra Port and Air Cargo Complex, New Delhi. The officers of Directorate of Revenue Intelligence (DRI) gathered intelligence that the said importers under-valued the imported goods. On 16.06.2015, the DRI officers visited the business premises and residences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other persons admitted the under valuation and misdeclaration in their statements and, therefore, there was no requirement to follow provisions of Section 138B of the Act. It is further submitted that in view of the decision of the Tribunal, in the case of M/s. Laxmi Enterprises - Vs C.C., Preventive, vide Final Order No.50544/2018 dated 05.02.2018, the rigors of Section 138C need not be followed, in case where the documents are obtained from the custody of the appellants and the appellants admitted such documents in their statements. 4. Heard both sides and perused the record. 5. We find that the DRI officers conducted search operation in the residential premises of Shri Nikhil Asrani, Director of the importer, office-cum-godown of Suresh Kumar Co. (Impex) Pvt. Ltd. and other premises. Panchnamas both dated 16.06.2015 were prepared in respect of recovery of Laptop, Desktop, I.Pad, I.Phone and Labeling Printing machines. The Officers also recorded statement of Shri Nikhil Asrani, Shri Aseem Asrani, Shri Suresh Kumar Asrani on different dates. Record of proceedings were prepared on various dates for forensics analysis of the electronic evidences such as, Laptop, Desktop, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore 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 is derived; (c) throughout the material part of the said period, the computer was operating properly or, if not, then any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of the contents; and (d) the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether - (a) by a combination of computers operating over that perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 there from by calculation, comparison or any other process. 8. On close reading of Section 138C of the Act, 1962, it is seen that the legislature had prescribed the detailed procedure to accept the computer print-outs and other electronic devices as evidences. It has been stated that any proceedings under the Act, 1962, where it is desired to give a statement in evidence of electronic devices, shall be evidences of any matter stated in the certificate. In the present case, we find that the provisions of Section 138C of the Act were not complied with to use the computer print-outs as evidence. The ld. Counsel for the appellants submitted that there is a gross illegality committed during the retrieval of the electronic documents. It appears from the Panchnama and record of proceedings th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taining to an electronic record, it is permissible provided the following conditions are satisfied: (a) There must be a certificate which identifies the electronic record containing the statement; (b) The certificate must describe the manner in which the electronic record was produced; (c) The certificate must furnish the particulars of the device involved in the production of that record; (d) The certificate must deal with the applicable conditions mentioned under Section 65-B(2) of the Evidence Act; and (e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device. 16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Consequently, the evidence in the form of computer print-outs etc. recovered during the course of investigation can be admitted as in the present proceedings only subject to the satisfaction of the sub-section (2) of Section 138C. This refers to the certificate from a responsible person in relation to the operation of the relevant lap-top/computer. After perusing the record of the case, we note that in respect of the electronic documents in the form of computer print-outs from the seized lap-tops and other electronic devices have not been accompanied by a certificate as required by the Section 138 C (2) as above. In the absence of such certificate, in view of the unambiguous language in the judgment of the Hon ble Supreme Court (supra), the said electronic documents cannot be relied upon by the Revenue for confirmation of differential duty on the appellant. In the present case, the main evidence on which, Revenue has sought to establish the case of under-valuation and mis-declaration of the imported goods is in the form of the computer printouts taken out from the laptops and other electronic devices seized from the residential premises of Shri Nikhil Asrani, Director in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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