TMI Blog2018 (11) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... ortunity accorded to the Opposite Party who challenges this fact and that the same is in accordance with the principle of natural justice as also in accordance with the procedure under order 19 of the Civil Procedure Code and the Evidence Act. Section 45A of Evidence Act, 1872 requires opinion of examiner of electronic evidence in respect of any matter relating to any information stored in any computer resource - Shri Vinod Kumar Mishra and the other transporters were not produced for cross examination by the appellant and that it was responsibility of Revenue to produce them for cross examination since same were prosecution witnesses. In the present case, therefore, the statements given by Shri Vinod Kumar Mishra and other transporters cannot be relied for arriving at any decision against the appellant. Further the allegations were that the computer printouts were perused and signed by Shri Vinod Kumar Mishra and the contention of appellant was that Shri Vinod Kumar Mishra was not produced for cross examination. Therefore, the printouts are doubtful as evidence. Further, in the absence of expert opinion by examiner of electronic evidence the allegations that the computer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a computer installed in their factory. Scrutiny of the same revealed that the last invoice issued from the said computer was Invoice No. 458 dated 15.10.2007. Further, it was noticed that the invoices between the two Invoice No.454 and 458 as shown generated from the said computers was missing i.e. there was no details of invoice No.455, 456 457 all dated 15.10.2007. On further examination, it was noticed that the computer software was so customized to generate the same number of invoice repeatedly. Shri Vinod Kumar Mishra, supervisor authorized signatory, available on the spot explained that Production Supervisor provides the schedule of dispatches to him on the direction of Shri Tarun Aggarwal, Director on the basis of which he used to prepare the packing slip manually and subsequently invoices were generated on the computer system and forwarded to the production department for dispatch/clearance from the factory. He also deposed that the computer software and the computer was customized to their needs and requirements. As the computer system revealed discrepancies as regards the invoices generated by it, the visiting officers resumed the CPUs along with the other resumed fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transporter M/s Om Tempo Transport Services, from whose premises rough hand-written Purchees (chits) were resumed, deposed that the said Purchees contained the details pertaining to the quantity of goods issued by M/s KIL, invoices issued were given to the drivers and used for transporting the goods, acknowledgement from the receiver of the goods was obtained on the back of said invoices which were ultimately returned to the appellant. On comparison of the said Purchees with the invoices issued by M/s KIL on the corresponding date it was found that they do not relate to any of the invoices in most of the cases. In his subsequent statement Shri Satish Kumar, Proprietor M/s Om Tempo Transport Services recorded on 12.03.2008, it was deposed that the invoice were being issued only for transit and after the delivery of the goods the same were brought back. Most of the time no statutory documents were issued for transportation of goods. Statement of various other transporters as also drivers were also to the same effect. 2.8. During the course of further investigations, Revenue also approached the appellant‟s buyers, Shri Ravidner Kumar Kochhar, Director of M/s SRV Print Pack Pv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p of which it was possible to generate the same number of invoice repeatedly; (ii) Statements dated 16.10.2007, 10.12.2007 4.2.2008 of Shri Vinod Kumar Mishra, wherein he stated:- (a) Modus of addition/deletion of invoices in the computer system and that data retrieved from CPU contains details of clandestine removal by KIL; (b) Deletion of invoices no. 455, 456 457 all dated 15.10.2007, on the directions of Shri Tarun Aggarwal, Director; (c) Invoices contained in File No. 24 were signed by him and all such invoices were brought back in factory after dispatch delivery of goods and later on deleted from Computer, on the directions of Shri Tarun Aggarwal, Director; (iii) Statements of Shri Atilesh Kumar Yadav (owner of trucks), Shri Ishwar Singh, Shri Pradeep Nangia, Shri Sanjay Kumar (drivers of trucks), to the effect that Shri Vinod Kumar Mishra used to issue documents and purchee for freight and they have transported goods under cover of invoices contained in File No. 24; (iv) Statement of Shri Satish Kumar, proprietor of M/s Om Tempo Services wherein he stated that he transported goods without issuing GR and that goods were sent on various purchees issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice. 17. Only if the electronic record is duly produced in terms of Section 65-B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be made to Section 45-A-opinion of Examiner of Electronic Evidence. The aforesaid judgment has been followed by Apex Court in the case of Harpal Singh vs. State of Punjab (2017) 1 SCC 734. Further, condition of providing certificate referred to in sub-section (4) cannot be relaxed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , such document is kept out of consideration by the court in absence of certificate under Section65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) is not always mandatory. 12. Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies. Condition of clause (a) of sub-section (2) also not fulfilled In the present case, computer printout containing the statement was admittedly produced on 15.11.2007 and 10.12.2007, during the period, when the same was not regularly used by Appellant. Since the CPU in question was regularly used by Appellant till 16.10.2007 only the same was never used for the purposes of regular business activity, hence it cannot be said that on 15.11.2007 and 10.12.2007, the CPU in question was regularly use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be relied upon as evidence, as held by Hon‟ble Allahabad High Court in the case of CCE vs. Parmarth Iron Pvt. Ltd. 2010 (260) ELT 514 All, as under:- 16. We, therefore, have no hesitation in holding, that there is no requirement in the Act or Rules, nor do the principles of natural justice and fair play require that the witnesses whose statements were recorded and relied upon in the show cause notice, are liable to be examined at that stage. If the Revenue chose not to examine any witnesses in adjudication, their statements cannot be considered as evidence. However, if the Revenue chose to rely on the statements, then in that event, the persons whose statements are relied upon have to be made available for cross examination for the evidence or statement to be considered. Since Revenue was relying on the statements of Shri Vinod Kumar Mishra, hence it was the responsibility of the Revenue to produce Shri Vinod Kumar Mishra for cross-examination, which has not been done in the present case. It was held by Hon‟ble Delhi High Court at Para 42 of CCE vs. Vishnu Co. Pvt. Ltd. 2016 (332) ELT 793 Del to the effect that prosecution has to produce prosecution witness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een done, his statement cannot be read as evidence against Appellant. At any rate, his statement that goods were transported by him without GR, is of no relevance, since in normal practice GR are not issued by tempo owners, transporting goods by tempos and Shri Satish Kumar is admittedly proprietor of M/s Om Tempo Services. Further, his statement that goods were being transported under cover of purchee issued by Shri Vinod Kumar Mishra, also cannot be admitted as gospel truth, in absence of production of Shri Vinod Kumar Mishra for cross-examination. Further, the two chits mentioned in the Order-in-Original relates to goods received for job-work and returned after completion of job-work, for which evidence is available as per Annexure -13 at Page 172, Annexure -14 at Page 173 Annexure -15 at Page 180 of appeal paper book. F. FILE CONTAINING 129 INVOICES, ALLEGED TO BE REGENERATED INVOICES Finding in the Order-in-Original that file resumed at Sl. No. 24 of Annexure-C of Panchnama dated 16.10.2007 contains 129 regenerated invoices, is based on statement of Shri Vinod Kumar Mishra and statements of truck owner and truck drivers. However, Shri Vinod Kumar Mishra, who s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tarun Aggarwal, is in respect of Invoice No. 455, 456 457, all dated 15.10.2007, in respect of which, burden was on Revenue to show that confession was voluntary and not obtained as an outcome of threat etc., which has not been discharged in the present case. Reliance is placed on Para 34 of Vinod Solanki vs. UOI 2009 (233) ELT 157 SC. J. ABSENCE OF SUFFICIENT AND TANGIBLE EVIDENCE TO PROVE CLANDESTINE REMOVAL- It is a settled law that clandestine removal is a serious charge, which is required to be discharged by production of sufficient and tangible evidence in the nature of purchase of raw material, use of electricity, additional labour, sale of final product, clandestine removal, mode and flow of funds etc., as held in Para 12 of Continental Cement Company vs. UOI 2014 (309) ELT 411 (All). In the present case, Revenue has failed to produce any cogent and tangible evidence and clandestine removal has been alleged only on the ground of presumptions and assumptions, which is clear from the fact that no enquiry has been conducted regarding electricity consumption, additional labour, excess purchase of raw material, flow back of consideration etc. K. PENALTY OF MANAG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sharma was made by appellants. The request was acceded and notices were sent to concerned persons several times. However, vide their letter date 12.09.2011, the appellants changed their stand and instead of the cross-examination of persons desired earlier, cross-examination of the officers has been desired. 5. After having gone through the case record as reflected in appeal paper book and the submissions from both the sides and the rulings by Hon‟ble High Courts and Supreme Court relied upon by the learned counsel for the appellants we note that the Hon‟ble Allahabad High Court has ruled in the case of Commissioner of Central Excise, Meerut-I vs. Parmarth Iron Pvt. Ltd. (supra) in Para 16 that if Revenue chooses to rely on the statements then in that event the persons whose statements are relied upon have to be made available for cross examination for the evidence or statements to be considered. We further note that Hon‟ble Supreme Court in the case Bareilly Electricity Supply Co. Ltd. (supra) in Para 14 has ruled that if a letter or other document is produced to establish some evidence which is relevant to the enquiry the writer must be produced or his affida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied as evidence for any adjudication. In the present case, therefore, the statements given by Shri Vinod Kumar Mishra and other transporters cannot be relied for arriving at any decision against the appellant. Further the contention of appellant that sub Section (4) of Section 36B has not been complied with in respect of computer printouts also is tenable in law. Further the allegations were that the computer printouts were perused and signed by Shri Vinod Kumar Mishra and the contention of appellant was that Shri Vinod Kumar Mishra was not produced for cross examination. Therefore, the printouts are doubtful as evidence. We further note that in the absence of expert opinion by examiner of electronic evidence the allegations that the computer was capable of repeatedly generating invoices with the same number is not established beyond doubt. We further note that for on examination of allegations in respect of clandestine removal on the criteria laid down by Hon‟ble High Court as referred to above in the case of Continental Cement Company the allegations of clandestine removal are not established in the present case. We further note that the learned counsel for the appellants h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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