TMI Blog2009 (10) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... ESENTED BY : Shri N. Rajagopalan, Spl. Consultant, for the Appellant. S/Shri Habibullah Basha, Sr. Counsel and S. Jai Kumar, Advocate, for the Respondent. [Order per : P. Karthikeyan, Member (T)]. - These ROM petitions filed by assessees Sri Amman Steels Allied Industries (SASAI) and Sri Ulaganayagi Amman Steels (SUAS) and the Revenue relate to Final Order Nos. 529 to 535/ 2008 dated 30-4-08 [2008 (231) E.L.T. 434 (Tribunal)]. The above Final Order allowed the appeals filed by the revenue and the assessees against Order No. 6/2007 dated 4-5-07 and No. 7/2007 dated 10-5-07 of the CCE, Trichy by way of remand. These orders had demanded duty on iron bars/rods and ingots/billets found to have been cleared respectively by SASAI and SUAS clandestinely during 2002-03 and 2003-04. Commissioner had dropped the proposal to demand duty on such clearances made during 2001-02, on the ground that the only evidence available were computer print outs. As they did not satisfy the conditions under Section 36B(2) of Central Excise Act (the Act) they could not be used as evidence as such, in the absence of corroboration. 2. Assessees challenged the order on the basis that compu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. Ld Sr. Counsel for the assessees cited the Apex Court's judgment in Honda Siel Power Products Ltd. v. CIT, New Delhi I [2008 (221) E.L.T. 11 (S.C.) = 2008 (9) S.T.R. 117 (S.C.)] in support of the plea that if the Tribunal had committed a material error in a final order and had caused prejudice to either party, the Tribunal would be justified in rectifying such error and this was a fundamental principle not related to the concept of inherent power of the Tribunal. The observation of the Apex Court applied to proceedings before the CESTAT as well, it is argued. In that case, relating to an income-tax case, the ITAT had missed a decision of a co-ordinate Bench cited before it and consequently denied to the appellant benefit of depreciation on account of exchange rate fluctuation. The ITAT had allowed the ROM of the assessee and rectified the omission. On appeal by the revenue, the High Court vacated the order of the Tribunal. Apex Court passed the judgment cited, in appeal against the said order of the High Court. 7.1 Their lordships had observed that the purpose behind enactment of Section 254(2) of the IT Act was based on the fundamental principle that no party a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first time after seizing the floppy with the key (password) he gave were reliable. Files on the floppies seized from the residence of M/s. Ponnalagu when opened were found to carry the computer generated endorsement that they had been modified last on a date before 24-6-04 (when the floppies were seized). These files were also reliable. These files were beyond suspicion of the investigating authority having manipulated them. They had in effect an electronic seal which showed that they had not been tampered with. We find that Shri N. Palani, Accounts Officer had deposed on 23-8-04 that Shri S.P.M. Anandan and he had maintained computerized accounts and issued invoices. This answers the grievance of SASAI and SUAS that our finding that Shri S.P.M. Anandan had maintained the computer was another error apparent from the record. We do not find any error in our Final Order in finding certain files to be reliable. (c) Bench is alleged to have ignored the objection of assessees to accepting the computer printouts as evidence contrary to the mandate contained in Section 36B(2) of the Central Excise Act (the Act). Further, provisions of the Evidence Act applied to the proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal Order, para 24.4 of the SCN was referred to. It had been mentioned that unauthorized transactions had been stored in zip floppy through zip drive. The Bench had observed, "We find that there is no claim that representatives of the assessee questioned the reliability of the printouts on this ground. This aspect should have been taken up before the Commissioner". The assessees had taken up the issue in reply to SCN and in the appeal before the Tribunal. The wrong finding of the Tribunal had caused prejudice to the assessee. Our observations in this regard are that the assessees' representatives had not raised any objections when the files were opened, about the floppies being not the genuine ones containing original data seized from the assessees. The data retrieved showed that they contained inputs fed before they came into possession of the investigating agency. Assessees have no case that 3.5" floppies had not been seized from them. We have found that the files found reliable had not been tampered by the officers. The source of the files are the floppies maintained by the assessees. What is not in doubt is that the seized files contained genuine data. The assessee alone was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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