TMI Blog2022 (4) TMI 1214X X X X Extracts X X X X X X X X Extracts X X X X ..... that the valuation has to be done on the basis of the transaction value and not based on any fixed value. If there are a hundred transactions between the importer and the overseas seller at different prices, for each transaction, the value under section 14 shall be that transaction value. Simply because the price is higher in any particular transaction, such price cannot be applied to other transactions to determine duty. Conversely, the importer cannot claim to pay duty on a lower value than the transaction value in any consignment even if other consignments were sold to the same importer by the same overseas supplier at lower prices. Valuation has to be done for each import as per that transaction value. There is also no provision to take the average price to determine the duty if the transaction values are available. In this case, DRI officers found that the invoice which was presented along with the Bill of Entry was a trader s invoice for a value which was substantially lower than the price at which the trader himself had purchased the goods. Both the manufacturer s invoice on the trader and the trader s invoice on the importer were for exactly the same consignment with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value in it, transaction values cannot be rejected under Rule 12 by extrapolations. They can be rejected if the officer has reasonable belief based on the evidence in that case, that the transaction value is not true and accurate - the rejection of the transaction value in the imports covered in Worksheets IIIA and IV of the SCN by extrapolation and re-determination of the value have no legal basis and need to be set aside. Consequently, the demands in these cases by re-determination of the values cannot also sustain. There is nothing on record to show that the procedure prescribed under section 65B of the Evidence Act, section 3 of the Information Technology Act, 2000 or section 138C of the Customs Act were followed. Learned Departmental representative could not also produce anything on record to show that these were followed. Therefore, the pen-drive is inadmissible as evidence despite the vital information which it contained and which was relied upon by the Revenue. The mere fact that there was a difference between the two sets of invoices without questioning anyone or investigating as to why there is a difference cannot be a sufficient ground to reject the transaction val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and the residence of Shri Prem Kumar Sachdev [ Sachdev ], the authorised signatory of the respondent on 03.03.2016 and recovered, inter alia, some invoices raised by the Chinese manufacturer on Shri Khera, two computer Hard-disks of Western Digital make of 500 GB capacity each, one Kingston make pen drive of 1GB capacity and a Kingston make flash drive of 2GB capacity. They sent the digital media to Central Forensic Science Laboratory [ CFSL ], Hyderabad for forensic examination and analysis, who retrieved the data and sent their report dated 10.05.2016. 5. After recording statements, scrutinizing the data retrieved by the CFSL from the pen-drive and conducting further investigation, it appeared to the officers of DRI that: a) Shri Sachdev is the authorized signatory of the respondent and his wife and son are its Directors. All the fitness equipment imported from China and Taiwan are sold under the registered brand name 'Aerofit . Shri Sachdev engaged Shri Khera and as per their arrangement, the manufacturers in China would raise invoices on the companies run by Shri Khera in Taiwan, who, in turn would raise invoices on the respondent. b) The respondent placed purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l value of the goods seized as was revised was ₹ 7,77,44,312/-. The total value of the fitness equipment imported by the respondent from 21.10.2011 to 26.02.2016 was calculated as ₹ 250,58,31,276/- (including the above seized goods). 8. The SCN dated 20.10.2018 was issued by the Additional Director General, DRI to the respondents calling upon them to explain as to why differential duties should not be recovered from them under section 28(4) along with applicable interest under Section 28AA and also why the seized goods should not be confiscated under Section 111 and penalties should not be imposed under Section 112(a) and 114A. 9. After following due process, the learned Commissioner passed the impugned order dropping the proceedings in the SCN. 10. This appeal is filed by the Revenue assailing the impugned order. On behalf of the appellant Revenue, the following submissions have been made: (i) The adjudicating authority held in para 70, 71 of the OIO, that the declared value can be rejected by the officer under Rule 12 of the Customs Valuation Rules, 2007 on the basis of certain reasons which may include the significantly higher value at which identical or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the importer for exactly the same goods being imported itself establishes the relevance of the invoices raised by the manufacturer to the import transaction. Had these invoices been irrelevant to the transaction between the importer and the supplier, the invoices would not have been found at their premises. Smt. D.R. Kavita, Office Executive of the respondent in her statement dated 05.03.2016, stated that they receive the manufacturer's invoices and packing list, along with the invoice and packing list of the trader/supplier to their official mail ID, sachdev.overseas09@gmail.com. This reaffirms the relevance of the manufacturer's invoices to the imports made by the respondent. Apparently, these manufacturers' invoices and actual values were the basis for the respondent to work out the differential 'unaccounted' values and make the non-banking payments to the Taiwan supplier Shri Rajan Khera. Hence the said invoices co-relatable with the details in Statement of Accounts form crucial evidence which has not been considered. (v) Further, a corroborative statement of accounts was recovered from the pen-drive seized at the residential premises of Shri Prem Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that none of the ingredients specified under Rule 12 are available in the present import to re-assess the value of the impugned goods . (viii) It is reiterated that the grounds provided in the explanation to sub-rule (2) of Rule 12 of the Customs Valuation Rules, 2007 for rejection of declared value are merely indicative and not exhaustive. The said explanation itself states that the rule only provides a mechanism and procedure for rejection of declared value in cases where there is reasonable doubt that the declared value does not represent the transaction value . Clause (iii) of the explanation to sub-rule (2) of Rule 12 of the Customs Valuation Rules, 2007 reads, The proper officer shall have the powers to raise doubts on the truth or accuracy of the declared value based on certain reasons which may include... . It is, therefore, evident that the grounds provided in the said explanation are not exhaustive. Thus, the grounds stated in the SCN are to be considered on their own merits without to whether or not they satisfy or find mention in the indicative grounds listed in the said explanation. (ix) The methodology adopted in the SCN for determining the value under Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, manufacturer s invoice, if available and genuine, is the best evidence of the price of imported goods and it is not necessary to go to other contemporaneous imports and identical and similar goods and the manufacturers invoice price should be taken as the transaction value under the valuation rules. Thus, the Commissioner s rejection of manufacturers invoice price adopted by the DRI authority to re- determine the value of imported goods in question is incorrect and the Commissioner s finding that the authorities failed to re-determine the value based on contemporaneous import values will fail. (xi) The agreement dated 06.04.2010 between M/s SOFPL and M/s Lucky Partners Investments Ltd., Argain Company Limited (Taiwan suppliers), to the effect that a quantity discount of a maximum of 35% based on approximate turnover in a financial year would be given by the Taiwan suppliers to M/s SOFPL, was not submitted to the investigating agency nor even referred to remotely, during the course of investigation, despite having ample time and opportunities to do so. Further, in the various statements of the authorized Signatory and employees of M/s SOFPL, recorded under Section 108 of Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who failed to share the data with the importer. The adjudicating authority has relied upon the judgment of the Hon'ble Tribunal in Surya Boards Ltd. vs. CCE, Rohtak, reported in 2014 (312) ELT 282 (Tri- Delhi) in this regard. (xiv) It is factually incorrect that the digital evidences extracted by the Central Forensic Science Laboratory, Hyderabad were not shared with the importer. Shri Prem Kumar Sachdev vide his statement dated 22.09.2016 recorded under Section 108 of the Customs Act, 1962 (enclosed as Annexure 13 to the SCN) acknowledged that he was shown the examination report dated 10.05.2016 and the contents of the digital evidence extracted from the pen drive and flash drive recovered from his residential premises under Panchnama dated 03.03.2016. (xv) Further, the examination report received from CFSL was provided to the noticees along with the show cause notice as Annexure-4. The copy of the file containing the statement of accounts, extracted from the pen drive was also enclosed as Annexure-12 to the SCN, as a relied-upon document. The same bears the dated signature of Shri Prem Kumar Sachdev on each page with the word seen in token of having seen the said docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonable conclusion that Sri Pal Ji listed in the document is none other than Sri Devinder Pal Narang. However, it is well established that the standard of proof in Customs adjudication proceedings is preponderance of probability and not proof beyond reasonable doubt. The preponderance of probability of amounts paid to the supplier in excess of the declared values is amply established in the facts laid out in the SCN that a) the evidence is recovered from the pen drive found in the residential premises of the Shri Prem Kumar Sachdev the Authorized Signatory of M/s SOFPL during search proceedings; b) the Statement of Accounts found in the pen drive shows that besides the payment through banking channel corresponding to the value declared to Customs, additional payments were made through individuals; c) the individuals are connected with M/s SOFPL and their Authorized Signatory Shri Prem Kumar Sachdev and d) the amounts shown in the debit entry against each invoice number are higher than the values declared to Customs in the same invoice numbers. (xix) The Hon ble Supreme Court in the case of Anvar P.V. Vs. P.K. Basheer and Others (Page Nos. 22 to 57) examined the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tivities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; (c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (e). Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... true transaction value and have been undervalued. 8. Learned Departmental Representative prayed that the impugned order may be set aside and the demand, interest, confiscation and penalties as proposed in the SCN may be confirmed. 9. On behalf of the Respondent, the following submissions have been made: a) The Respondent imports fitness equipment as per an agreement entered into with M/s. Lucky Partners Investments, Ltd., M/s. Power Argain Company and M/s. Best Crown Industries Ltd. all of which belong to Shri Khera and are located in Taipei, Taiwan. Shri Khera procures the goods from the manufacturers and supplies to the Respondent with a quantity discount over the Chinese manufacturer s price based on the turnover assured by the Respondent. Therefore, the prices at which Shri Khera exported the goods to the Respondent were lower than the manufacturer s price. b) The case of the Revenue is based mainly on a Statement of Accounts [ SOA ] found on a pen drive which was seized during the search of the house of Shri Sachdev. It does not belong to the respondent. No investigation was conducted to find out as to whom the Pen drive belonged to and who authored the entries in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e invoice under which the goods were imported, the logical step would be to ask Shri Sachdev, the authorised signatory of the appellant or his office staff about the differences and they would have explained. No question was put to them asking to explain why there were differences. i) The manufacturer s invoices found in the office of the respondent are not relevant for examining the value in the present case. j) The averment that parallel invoices were recovered from the office of the respondent is not true. Only a few invoices were recovered which are not relevant to decide the valuation in this case. k) The assertion that the differential amounts were paid by the respondent to Khera through non-banking channels is only a presumption and does not survive the test of law. l) The contents of the pen-drive are not admissible for the following reasons: (i) The Hash copy of the contents of the pen drive or a printout of the pen drive was neither taken nor given to Mr. Sachdev during the search of the house and seizure of the pen-drive. (ii) The copy of the report of the CFSL was also not given to the respondent during or after examining him. (iii) The ownership o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rked out as follows: a) Differential duty of ₹ 13,00,13,327 was worked out in WORKSHEET II based on the EXCEL file that was in the pen- drive. b) Differential duty of ₹ 2,44,92,805/- was worked out in WORKSHEET IIIA based on the averaged margins in Worksheet II. In other words, since some undervaluation was found in Worksheet II based on the evidence found in the pen-drive, extrapolating similar levels of undervaluation in other clearances where there was no evidence of undervaluation at all in WORKSHEET IIIA. c) In respect of goods not covered by either of the above, the undervaluation was assumed and the values were worked out under Rule 9 of the Customs Valuation Rules, i.e., the method to be adopted when the value cannot be determined under any of the Rules. This differential duty was worked out to ₹ 15,45,74,102/-in WORKSHEET IV. 11. The above three amounts were added and differential duty of ₹ 30,90,80,233/- was proposed to be demanded in the SCN. Thus, of the above, (a) is based on the evidence found in the pen- drive, (b) and (c) are based on projections and extrapolations. 12. Before examining the facts of this case, we examine the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of exchange as in force on the date on which a bill of entry is presented under section 46, or a shipping bill of export, as the case may be, is presented under section 50. (2) Notwithstanding anything contained in sub-section (1), if the Board is satisfied that it is necessary or expedient so to do, it may, by notification in the Official Gazette, fix tariff values for any class of imported goods or export goods, having regard to the trend of value of such or like goods, and where any such tariff values are fixed, the duty shall be chargeable with reference to such tariff value. Explanation. - For the purposes of this section - (a) rate of exchange means the rate of exchange - (i) determined by the Board, or (ii) ascertained in such manner as the Board may direct, for the conversion of Indian currency into foreign currency or foreign currency into Indian currency; (b) foreign currency and ''Indian currency have the meanings respectively assigned to them in clause (m) and clause (q) of section 2 of the Foreign Exchange Management Act, 1999 (42 of 1999) 13. The non-obstante clause in sub-section 2 of section 14 gives the Board the power to fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermination of value in respect of goods in any other case ; and f) the manner of acceptance or rejection of value declared by the importer or exporter, as the case may be, where the proper officer has reason to doubt the truth or accuracy of such value , and determination of value for the purposes of this section. 16. The Valuation Rules were framed as per the second proviso to sub-section 1 of section 14. It has 13 Rules in all of which Rules 1 and 2 are Preliminary rules. Rule 3 states that subject to Rule 12, the value shall be the transaction value adjusted according to Rule 10. Rule 10 provides for certain costs to be included in the transaction value. Rule 12 provides for the proper officer to reject the transaction value if he has reason to doubt its truth and accuracy. Thus, unless the proper officer rejects the transaction value under Rule 12, valuation has to be based on transaction value as per Rule 3 with some additions, if necessary, as per Rule 10. 17. Rule 3 further provides that if the valuation cannot be done under that Rule, i.e., as per the transaction value with additions as per Rule 10, then it must be done sequentially under Rules 4 to 9 . In o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and there is no value of identical goods or similar goods and it is not possible to determine value following deductive method, then value must be determined through computation (Rule 8) g) If the importer so chooses, computational method may be adopted without examining the deductive method first (Rule 6). h) If the transaction value is rejected and there is no value of identical goods or similar goods and if it is also not possible to determine the value through deductive method or computational method, then value may be determined through the residual method by the officer following the above principles (Rule 9). 20. The next question which arises is when can the proper officer reject the transaction value. Rule 12 reads as follows: 12. Rejection of declared value. - (1) When the proper officer has reason to doubt the truth or accuracy of the value declared in relation to any imported goods, he may ask the importer of such goods to furnish further information including documents or other evidence and if , after receiving such further information, or in the absence of a response of such importer, the proper officer still has reasonable doubt about the truth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transaction value with additions, if necessary). While the officer can, in the first place call for information and evidence if he has reason to doubt, at the second stage, he should have not just some reason to doubt but a reasonable doubt. If he has such reasonable doubt, then the transaction value can be rejected. The grounds on which the proper officer may raise doubts about the truth and accuracy of the transaction value have been illustrated in explanation 1 (iii) to Rule 12. The list is inclusive and not exhaustive. In this case, DRI officers found that the invoice which was presented along with the Bill of Entry was a trader s invoice for a value which was substantially lower than the price at which the trader himself had purchased the goods. Both the manufacturer s invoice on the trader and the trader s invoice on the importer were for exactly the same consignment with the same details as they were back to back orders. In other words, the respondent placed an order for X quantity of goods on the trader in Taiwan and the trader placed an order for the same goods on the manufacturer in China. The goods were shipped directly by the manufacturer from China to the respondent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chinese manufacturers invoice. Moreover the values contained in the statement of accounts obtained from the pen drivealso matches with the manufacturer s invoices and support the fact that the import of fitness equipment by M/s SOFPL are under- valued. Hence it appears that there has been suppression of values by M/s SOFPL for all the imports of fitness equipment made by them and that all the imports made by M/s SOFPL from Taiwan supplier do not represent the true transaction value and the declared value is liable for rejection. 23. The grounds for proposal to re-determine the value as per Rule 9 in the SCN are as follows: 15. In view of the above all the imports made by SOFPL from Taiwan suppliers do not represent the true transaction value and the correct value cannot be determined under Rule 3 of the Valuation Rules. The value of the goods cannot be determined even under Rule 4 and 5 as there are no identical or similar contemporaneous imports declaring the true transaction value. Further, the value cannot be determined even under Rule 7 and 8 for the reason that the exercise determined in respective rule is not possible for the subject goods. Hence the provisions of Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the office premises of M/s SOFPL) are provided in Worksheet-IIIA/B. However, the values available in the manufacturers invoices raised on the Taiwan suppliers, is further enhanced by the Taiwan suppliers when the very same goods are sold to M/s SOFPL. The enhanced values can be seen in the statement of accounts available in the pen drive recovered from the residential premises of Sri Prem Kumar Sachdev. The proportionate increase in value by the Taiwan suppliers is adopted to arrive at the true transaction value in terms of Rule 9 of valuation rules and the same is detailed in Worksheet-IIIA/B. The Chinese manufacturer s invoices are annexed to this show cause notice. 15.5 Worksheet-IIIA shows the values shown in the Chinese manufacturer s invoices which are also covered in the statement of accounts contained in the pen drive. Thus the undervaluation in respect of said invoices already stands quantified in Worksheet-II as mentioned above. 15.6 Worksheet-IIIB shows the values shown in the Chinese manufacturer s invoices which are not covered in the statement of accounts contained in the pen drive. As the business pattern remains same and the supplies are from the same Taiw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the total duties of customs payable by M/s SOFPL for the imports made from Taiwan suppliers works out to ₹ 72,70,52,235/- and the differential duty payable works out to ₹ 30,90,80,233/- as detailed in the Worksheet-V annexed to this show cause notice. 24. As may be seen, the proposal to reject the transaction value in respect of those imports listed in WORKSHEET II to the SCN [indicated in paragraph 10 (a) above] is based on the EXCEL sheet recovered from the Pen drive recovered from the residence of Shri Sachdev of the respondent and the copies of invoices recovered from the office of the respondent. As for the imports listed in WORKSHEET IIIA to the SCN [ indicated in paragraph 10(b) above] and WORKSHEET IV to the SCN [ indicated in paragraph 10(c) above], they are based on projections and extrapolations. Since the officers found some reason to reject the transaction value in imports covered by WORKSHEET II, it is also proposed to be rejected in the imports covered by the other two worksheets. We do not find any legal provision by which the transaction value can be rejected by extrapolation. As we explained above, each import is an assessment by itself and is ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belief based on the evidence in that case, that the transaction value is not true and accurate. We, therefore, find that the rejection of the transaction value in the imports covered in Worksheets IIIA and IV of the SCN by extrapolation and re-determination of the value have no legal basis and need to be set aside. Consequently, the demands in these cases by re-determination of the values cannot also sustain. 26. As far as the consignments covered by WORKSHEET II of the SCN are concerned, the rejection of the transaction value and its re-determination is based on the EXCEL file retrieved by the CFSL from the pen-drive seized from the residence of Shri Sachdev of the importer as well as copies of manufacturer s invoices recovered from the office of the respondent. The undisputed facts are that the respondent placed import orders on Shri Khera s companies in Taiwan who placed back-to-back orders on the manufacturers in China. The consignment was shipped directly from China by the Chinese manufacturer to the respondent. Such transactions are not uncommon in international trade where A places an order on B who, in turn places an order on C and goods get shipped from C directly to A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has with the manufacturer in China. It does not help answer the mysterious business arrangement; there could be some explanation but nothing is apparent from either the records or the submissions of the learned counsel. For instance, if the trader is giving a discount of say, 30% and the manufacturer, in turn, is giving back to the trader more than 30% of the manufacturer s invoice in some form (say, at the end of the year) it is understandable. The logical thing for any investigating officer who found two sets of invoices is to question the importer and if possible the trader and the manufacturer about the apparent anomaly. For an organization like DRI with its Customs Overseas Intelligence Network officers posted in many places including in Hong Kong, such investigation is not impossible. Unfortunately, in this case, in the statements of Shri Sachdev recorded by DRI officers as reproduced in the SCN only record his agreement that the trader s invoice is lower than the manufacturer s invoice (which is a matter of fact evident from the two invoices). He was not asked why. He was not asked as to how his supplier is selling each consignment at a loss of 30%. We also do not find that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additional payments were made to Shri Khera. Neither were the persons named in the file identified nor were they questioned to establish that cash payments were indeed made and if so, at whose behest. We agree with the learned counsel. If the case built by the investigating agency is that the goods were under-invoiced and that the differential amount was paid in cash to the supplier in Taiwan and the names of the persons through whom the amounts were paid are available in the EXCEL file, the logical step would be to identify and question these persons so as to establish that the amounts were, indeed paid in cash and if so, by whom, when and where. There is nothing on record to support that cash payments were made other than the entries in the EXCEL file. The persons indicated in the EXCEL file as those who made the payments were not identified or questioned. 31. Learned counsel also argued that the pen drive or any other form of electronic evidence is admissible under Section 138C of the Customs Act but in this case, the procedure prescribed under section 138C was not followed. Reliance is placed on HS Chadha vs Commissioner of Customs [ Customs Appeal No. 51768 of 2016 decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; (c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic record reproduces or is derived from such information fed into 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 period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 2000 3. Authentication of electronic records.- (1) Subject to the provisions of this section, any subscriber may authenticate an electronic record by affixing his digital signature. (2) The authentication of the electronic record shall be effected by the use of asymmetric crypto system and hash function which envelop and transform the initial electronic record into another electronic record. Explanation.-For the purposes of this sub- section, hash function means an algorithm mapping or translation of one sequence of bits into another, generally smaller, set known as hash result such that an electronic record yields the same hash result every time the algorithm is executed with the same electronic record as its input making it computationally infeasible- (a) to derive or reconstruct the original electronic record from the hash result produced by the algorithm; (b) that two electronic records can produce the same hash result using the algorithm. (3) Any person by the use of a public key of the subscriber can verify the electronic record. (4) The private key and the public key are unique to the subscriber and constitute a functioning key pair. Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-section (2) was regularly performed by computers, whether - (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. (4) In any proceedings under this Act and the rules made thereunder where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, - (a) identifying the document containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yal and others [ 2020 (7) TMI 740- Supreme Court ] to assert that merely not providing a certificate under section 65B of the Evidence Act does not necessarily vitiate the evidence when the pen drive itself is available as primary evidence. We have examined this assertion. In the case before the Supreme Court was an election dispute. The winning candidate s candidacy was challenged by the losing candidate on the ground that he had filed the nomination papers after the time for filing the nomination was complete. The Returning Officer returned the winning candidate anyway. The losing candidate sought to rely on the CCTV footage available with the election commission which was date and time stamped to assert that the nomination was, indeed filed one hour after the last date and time. The election commission did not provide a certificate as required under section 65B but provided the video footage which showed that the nomination was filed late. The returning officer was summoned and had, on oath affirmed that that the video footage pertained to the nomination. The question before the Supreme Court was, whether the video footage can be relied upon in the absence of a certificate under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the metadata to avoid corruption. Likewise, appropriate rules for preservation, retrieval and production of electronic record, should be framed as indicated earlier, after considering the report of the Committee constituted by the Chief Justices' Conference in April 2016. 35. In the present case, the person who had control over the pen drive has not given a testimony on oath that it reflects his transactions. On the contrary, the counsel for the respondent disputes that the pen drive reflects the true transactions. Hence, Arjun Panditrao Khotkar does not advance the case of the Revenue. 36. Revenue has also relied upon the order of this Tribunal in case of Sai Impex vs Collector of Customs [ 1992(62) ELT 616 (Tribunal) ] upheld by the Supreme Court [ 1996(84) ELT A 47(SC) ] to assert that once the manufacturer s invoice is available valuation has to be done as per it and it is not necessary to go into the values of identical goods, similar goods, etc. We find that the order was issued in the context of unamended section 14 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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