TMI Blog2019 (3) TMI 1444X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the appellant, it is seen that the department has not been able to give copies of the relied upon documents. This is clear from the letter issued by the department dated 23.10.2017. When the show-cause notice is issued proposing to impose such huge penalties, the department ought to have taken sufficient care to supply all relied upon documents to the appellants - The adjudication conducted without supply of entire relied upon documents is against principles of natural justice and vitiated. Inspite of the order of the Tribunal the department has given some screen shots only and have not supplied the copy of documents. For this reason itself, the confiscation and penalty cannot sustain. Admissibility of evidences - Held that:- Section 138C of the Customs Act deals with admissibility of micro-film, facsimile, copies of documents and computer printouts, as documents and evidence. The said section provides for certain requirements to be complied to make the statement from the computer to be admissible in evidence. In the present case, there is no certificate produced as required under sub-section (4) of section 138C. The department is founded on suspicion and assumptions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposing confiscation of the goods and also for imposing penalties. After due process of law, the original authority vide order dated 19.06.2014 confirmed penalty of ₹ 25 lakhs on the appellant and imposed separate penalty of ₹ 8 lakhs on Shri Vishnukumar, Director. Aggrieved by this order, the appellant had filed appeal before the CESTAT and vide Final Order No.41450- 41454/2016, dated 31.08.2016, the matter was remanded to the adjudicating authority giving a direction to supply copies of the documents to the appellant. After de novo adjudication, the original authority confirmed the allegation in the show-cause notice held that the goods are liable for confiscation. A penalty of ₹ 10 lakhs was imposed on M/s. Vishnukumar Traders (P) Ltd., and a separate penalty of ₹ 5 lakhs was imposed on Shri Vishnukumar, Director of the appellant-company under section 114AA of the Customs Act, 1962. Aggrieved, the appellant is once again before the Tribunal. 2. On behalf of the appellant, the learned counsel Shri N. Viswanathan appeared and argued the matter. (i) He emphasized that there was a direction by the Tribunal in the first round of litigation to hand over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he items to the Central Forensic Science Laboratory, Hyderabad and obtained examination report, dated 20.10.2011. In such report, among other things it is indicated that the relevant files have been retrieved from the suspected digital evidence storage media marked Q1, Q2 and Q4. The soft copies of these files and their file attributes is given in CDR marked CCH-79-82-09-CD. (iv) Consequent to this, show-cause notice, dated 04.05.12 proposing imposition of penalties under Sec.114(i) and 114AA of the Customs Act was issued alleging that they suppressed the original invoice indicating export of prohibited goods between April 2008 to March 2009. The department relies on a statement pertaining to the 53 shipping bills and alleged invoices retrieved from computer. It is worthwhile to mention that the show-cause notice does not rely on the 53 shipping bills admittedly seized at their premises or the invoices submitted by appellants at the time of export. No inquiry was conducted with the overseas buyers nor was any enquiry made with their bankers as to realization of the export proceeds from their overseas customers. (v) Most importantly even though the notice alleged that the tal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision contained in section 138C for admissibility of computer documents has not been complied by the department. Therefore, any material recovered from the computer cannot be relied upon and is inadmissible in evidence. The DRI have not followed the requirements under section 138C(4) of the Customs Act and no certificate signed by the officer maintaining the computer or of the independent witnesses has been furnished by the department. In fact, the computer data said to have been retrieved from the premises and made into a CD was sent to CFSL, Hyderabad. Such documents are inadmissible in evidence as the requirements under section 138C have not been complied. Further, the authorities did not provide copies of the documents retrieved by CFSL from the CD alleged to have been furnished by DRI to CFSL. It does not indicate whether the invoices relied upon in the show-cause notice relates to the one retrieved from the computer by DRI officers or whether they are the same as obtained from the CFSL. The department has not been able to prove that the appellants have received payment more than what is shown in the EDI system as exports. So also, they have not been able to establish that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reason that the proforma invoices will not contain the vessel name, voyage no., bill of lading etc. The appellant has not been able to explain as to how the proforma invoices contain such details. This is a strong indication that the appellant has exported prohibited goods. The computer data was made into a CD at the premises of the appellant itself. The information contained in the computer hard disk was used in the ordinary course of the business of the appellant. Therefore, they are all reliable documents. Further, Director of the appellant-Company Shri Vishnukumar has made a voluntary statement admitting that they have exported various prohibited items during the disputed period of prohibition. These are clinching evidences to establish that the appellant has exported prohibited items. The confiscation and penalties imposed are therefore proper and the impugned order does not call for any interference. 4. Heard both sides. 5. The allegation against the appellant is that they have exported rice, pulses and semolina in the guise of non-prohibited items. Rice, pulses and semolina are prohibited for exports in terms of DGFT Notification No.33/2007, dated 08.10.2007, No.9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y furnished screen shots of the shipping bills. Such screen shots are not sufficient for the appellant to defend their case. In fact, the procedure does not allow to supply such screen shots. When the show-cause notice is issued proposing to impose such huge penalties, the department ought to have taken sufficient care to supply all relied upon documents to the appellants. It is stated by department that the documents are not traceable and hence they are not able to provide. The adjudication conducted without supply of entire relied upon documents is against principles of natural justice and vitiated. Inspite of the order of the Tribunal the department has given some screen shots only and have not supplied the copy of documents. For this reason itself, the confiscation and penalty cannot sustain. 8. Section 138C of the Customs Act deals with admissibility of micro-film, facsimile, copies of documents and computer printouts, as documents and evidence. The said section provides for certain requirements to be complied to make the statement from the computer to be admissible in evidence. In the present case, there is no certificate produced as required under sub-section (4) of secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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