TMI Blog2023 (9) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... ination, as to whether, the transaction values declared by the importer/ appellant are correct or otherwise. The adjudicating authority observed that the evidence for the actual price was retrieved from the E-mails and invoices retrieved from E-mails. The authenticity of all the said Email printouts was admitted by partners of the appellant in their statements. On the other hand, the appellants disputed the veracity and authenticity of the evidences, collected through electronic devices. On reading of Section 138C of the Customs Act, 1962, it is seen that the Legislature had prescribed the detailed procedure to accept the computer printouts 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, the provisions of Section 138C of the Act were not complied with to use the computer printouts as evidence. It is noted that the certificate was not prepared during the seizure of the electronic devices, as required under the law. In the instant case, it is found that the entire case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed against the Order-in-Original CAO No. 63/2019-20 dated 08-11-2019 (for short, referred to as the impugned order ) passed by the Commissioner of Customs (Import- II), Mumbai. 1.1 In respect of 31 consignments imported through Bombay Port, the adjudicating authority has rejected the declared assessable value of Rs. 2,46,56,053/- and re-determined the same at Rs.16,19,37,406/-; confirmed differential customs duty amounting to Rs.4,04,17,003/- along with interest; appropriated the amount of Rs.16,50,000/- deposited by the appellant; imposed penalty of Rs.4,04,17,003/- under Section 114A of the Customs Act, 1962 on M/s. Plastic Cottage Trading Company (for short, referred to as the appellant company ). Besides, the impugned order has also imposed penalties of Rs. 20,00,000/- and Rs. 40,00,000/- on the appellant Shri Junaid Kudia under Section 112(a) ibid and 114AA ibid respectively. Besides, the impugned order has also imposed penalty of Rs.5,00,000/- on the other appellant Shri Zaid Kudia, partner of the appellant company under Section 112(a) ibid. 1.2 With regard to the consignments imported through Nhava Sheva port, the impugned order has rejected the declared assessable v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count these so called second set of invoices were retrieved, has not been allowed. Learned Advocate further submitted that cross examination of a person is important in the light of the fact that entire case of the DRI is based on the documents in the form of second set of invoices of import of goods. He also submitted that DRI officials have not recorded any statement of said Mr. Zulfikar and also not obtained his comments on the said second set of invoices, as to how he got such invoices; who had sent the same on his email ID and how the same are related to actual value of the imported goods etc. Thus, he submitted that cross-examination of the witness is natural right of the appellant and cross examination is an important component of natural justice and denial of the same by an adjudicator in quasi judicial proceedings is highly improper. To support such stand, the learned Advocate has relied on the judgment of the Pamwi Tissues Ltd. Vs. Collector of Central Excise, Chandigarh 1996(86) ELT 278 Tribunal, Manek Chemicals Pvt. Ltd. Vs. Union of India 2016 (334) ELT 302(Guj.) and Andaman Timber Industries Vs. Commissioner of C. EX., Kolkata-II 2017 (50) STR 93 (S.C.). 3.1 Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such an order not being an administrative order, it can only be reviewed and without such a review, the assessment order of the proper officers cannot be challenged. In the present matter, the B/Es were assessed and they have not been reviewed. Therefore, further re-determination of value done in the impugned order in-original is unsustainable. To support such stand, the learned Advocate has relied on the judgment of the Commissioner of Customs (Imports), Mumbai Vs. Lord Shiva Overseas 2005 (181) ELT 213 (Tri.-Mumbai) and Hitaishi Fine Kraft Inds. Pvt. Ltd. Vs. Commr. of Cus., West Bengal - 2002 (148) ELT 364 (Tri.-Kolkata) and Collector of Customs, Cochin Vs. Arvind Exports (P) Ltd. 2001 (130) ELT 54 (Tri.-LB). 3.2 Learned Advocate further submitted that the department has to follow the procedures and norms provided in the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. In the present matter, the adjudicating authority has re-determined the value and confirmed the charges of undervaluation and has proposed redetermination of customs value in terms of Rule 10 (1)(e) ibid. The said sub-rule envisages to include all other payments actually made or to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell acceptable as evidence in the eyes of law. In this context, the learned AR has relied on the decision of Hon ble Supreme Court in Asstt. Coll. Of C. Ex., Rajamundry Vs. M/s Duncan Agro Industries Ltd. 2000 (120) ELT 280 (S.C.) and Surjeet Singh Chhabra Vs. Union of India 1997(89) ELT 646 (SC). He further submitted that though the appellant wanted to cross examine Mr. Zulfikar Shaikh, but even after issuance of many summons, Zulfikar Shaikh did not turn up to join the investigation. In the present matter, learned Adjudicating authority rightly denied the cross examination. In this regard, the learned AR has relied on the decisions in the case of Union of India Vs. Rajendra Bajaj [2010 (253) ELT 165 (Bom)], Kanungo Co. Vs. Collector of Customs, Calcutta And Others [1983 (13) ELT 1486 (S.C).], Fortune Impex Vs. Commissioner of Cus., Calcutta [2001 (138) ELT 556 (Tri.- Kolkata)] and Suman Silk Mills Pvt. Ltd. Vs. Commissioner of Cus. C. Ex., Baroda [2002 (142) ELT 640 (Tri. Mumbai ). 5. Heard both sides and perused the case records, including the written submissions filed during the course of hearing of appeals. 6. Rejection of declared value on Bill of Entry is a ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inted material produced by a computer (hereinafter referred 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 statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter to be stated to the best of the knowledge and belief of the person stating 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 informati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-section (2) are satisfied, without further proof or production of the original . 14. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining 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 65B(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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible. 10. Upon perusal of the judgment of the Hon ble Supreme Court in the case of Anvar P.V. (supra), we note that the Apex Court has categorically laid down the law that unless the requirement of Section 65B of the Evidence Act is satisfied, such evidence cannot be admitted in any proceedings. We note that the Section 138C of the Customs Act is parimateria to Section 65B of the Evidence Act. Consequently, the evidence in the form of computer printouts, etc., recovered during the course of investigation can be admitted in the present proceedings, only subject to the satisfaction of the subsection (2) of Section 138C ibid. This refers to the certificate from a responsible person in relation to the operation of the relevant laptop/computer. After perusing the record of the case, we note that in respect of the electronic documents in the form of computer printouts from the seized laptops and other electronic devices, have not been accompanied by a certificate as required by Section 138C(2) ibid as above. In the absence of such certificate, in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity has not followed the procedures prescribed under Section 138B of the Act, 1962. We are also in agreement with the Appellant that the statements of witnesses cannot be relied upon as Learned Adjudicating authority not conducted cross-examination. Hence, on this ground also demand of duty cannot be sustained. 13. We also noticed that the Adjudicating authority in order to justify the under valuation, has relied upon the statements of partners of the appellant s company. However, the Appellant has objected to such reliance, as the statements were retracted. The Appellant has pleaded that retracted statements cannot be accepted as evidence for confirmation of demand. The adjudicating authority in the impugned order has chosen not to consider the retraction. We are of the view that the said approach of the adjudicating authority is incorrect. Be that as it may, we note that statements cannot be the sole reason to confirm the charge of undervaluation. We also note that in the present matter there are no evidences produced by the department that the excess amount over and above the invoice price was paid to suppliers. There is no evidence as to how the Appellant came into possessi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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