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TMI Blog2025 (5) TMI 1538X X X X Extracts X X X X X X X X Extracts X X X X ..... ut as the goods were not available for confiscation, the Principal Commissioner refrained from imposing any redemption fine. The order also confirms the demand of differential customs duty under section 28(4) of the Customs Act with applicable rate of interest under section 28AA of the Customs Act. The order also imposes penalty upon the appellant. 2. Customs Appeal No. 50956 of 2021 has been filed by Rajiv Dhuper to assail that part of the order dated 26.07.2011 passed by the Principal Commissioner that imposes a penalty of Rs. five lakhs upon him under section 112(a)(ii) and section 112 (b)(ii)of the Customs Act and a penalty of Rs. Five lakhs upon him under section 114AA of the Customs Act as a partner of the appellant. 3. The appellant imported Automotive Windshield (Automotive Safety Glass) of assorted sizes for various models by classifying them under Customs Tariff Item [CTI] 7007 21 90 during the period 2015-18. An investigation was carried out by the Special Intelligence and Investigation Branch [SIIB] and a show cause notice dated 21.08.2020 was issued to the appellant alleging suppression of the actual transaction value and resorting to under-valuation relying upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his statement dated 30.10.2018 recorded under Section 108 of the Customs Act, 1962 cetegorically admitted that the excel sheets recovered from his WeChat account was their account summary of purchases made by them from M/s. Dongguan Benson Automobile Glass Co. Ltd., China and payments made thereof. The said statement was reconfirmed by him on 01.02.2019 wherein he also stated that if any under-valuation was found in their import they were ready to pay the differential duty, interest & penalty as applicable. (v) The Gross weight of the 40 feet container mentioned in Excel Sheet retrieved from WeChat of Shri Rajiv Dhupar are almost in the range of 27270 Kg to 28600 Kg. The declared value of the imported goods at the time of clearance were between USD in the range of USD 34,300/- to 45,000/-." (emphasis supplied) 4. The appellant filed a reply to the show cause notice and stated that the value declared at the time of clearance of imported goods was correct and the payments of the imported goods was made through proper banking channels. The appellant also stated that the rejection of the transaction value based on the printout of Excel Sheet retrieved from 'WeChat' of Rajiv Dhup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods in order to evade proper duties, and used to present fabricated invoices for Customs clearances, having lower than actual values, for evasion of Customs duty on the said goods. The actual values of 30 invoices mentioned in Excel sheet were found in respect of consignments imported from M/s. Dongguan Benson Automobile Glass Co. Ltd., China. (ii) I find that Shri Rajiv Dhuper, Partner of M/s. Composite Impex, in his statement dated 30.10.2018 recorded under Section 108 of the Customs Act, 1962 categorically admitted that the excel sheets recovered from his WeChat account was their account summary of purchases made by them from M/s. Dongguan Benson Automobile Glass Co. Ltd. China and payments made thereof. The said statement was reconfirmed by him on 01.02.2019 wherein he also stated that if any under-valuation was found in their import they were ready to pay the differential duty, interest & penalty as applicable. xxxxxxxxxxxx (xiii) In view of the above discussion, I find that in the instant case, the evidences, as discussed hereinabove, read with the various statements by Sh. Rajiv Dhuper admitting the undervaluation as well as the incriminating documents retrieved fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice, from the Customs Authorities in their respective import documents at the time of import with the sole intention of evading applicable Customs duty. Sh. Rajiv Dhuper vide his voluntary statement dated 12.10.2018, 30.10.2018 and 01.02.2019 admitted the undervaluation and was ready to pay any differential Customs duty, interest & penalty as applicable. Further, recovery of Excel sheet of wechat depicting higher value of their imported goods from the email/We chat of the importer clearly indicates that the importer had intentionally suppressed the documents, willfully presented a fraudulent and incorrect invoice to Customs and mis-stated the transaction value of imported goods in the Bills of Entry, with clear intention to evade payment of correct customs duty. Sh. Rajiv Dhuper was actively involved in the import of these goods by M/s Composite Impex as discussed above and these facts were also admitted by him in his statements discussed above. Thus I find that Sh. Rajiv Dhuper, active Partner of M/s Composite Impex was the mastermind of this fraud which he perpetrated by suppressing the actual transaction value of the goods and wilful under-valuation/ mis- declaration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Excel Sheet allegedly retrieved from the We-Chat and stated that neither the company nor any employee had sent any Excel Sheet/Bill Report to the appellant; (iv) The statement of Rajiv Dhuper under section 108 of the Customs Act cannot be read in evidence; (v) The value declared by the appellant is the actual transaction value as per section 14 of the Customs Act read with rule 3 of the 2007 Valuation Rules and the Principal Commissioner wrongly rejected and re-determined the said value under rule 3 read with rule 10 of the 2007 Valuation Rules; and (vi) The extended period of limitation could not have been invoked in the facts and circumstances of the case. 10. Shri Nagendra Yadav, learned authorized representative appearing for the department made the following submissions: (i) The documents received on 'WeChat' revealed that the importer had indulged in suppressing actual invoices depicting the correct transaction value of the goods in order to evade proper duties, and presented fabricated invoices for customs clearances, having lower values for evasion of customs duty; (ii) Rajiv Dhuper, partner of M/s. Composite Impex, in his statement dated 30.10.2018 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 2007 Valuation Rules. The Principal Commissioner has basically relied upon the data contained in the Excel Sheet printout taken from another electronic device pen drive. This Excel Sheet is said to contain data retrieved from the 'WeChat' said to have been sent by Max of M/s. Dongguan Benson Automobile Glass Co. Ltd., China to Rajiv Dhuper, partner of the appellant. It is on a comparison of the details in the printout of the Excel Sheet and the declared value of the Bills of Entry that the declared transaction value has been rejected under rule 12 of the 2007 Valuation Rules. The Principal Commissioner has also relied upon the statement made by Rajiv Dhuper on 30.10.2018 recorded under section 108 of the Customs Act in which, it is said that he admitted that the Excel Sheet contained the account summary of the purchases made and the payments made. The proforma invoice/commercial invoice raised by the supplier to the importer at a higher value was taken to be the price actually paid as mentioned in the Excel Sheet and has, therefore, been taken to be the correct transaction value. 13. The first issue, therefore, that arises for consideration in this appeal is as to whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Evidence Act. The purpose of this provision is to sanctify secondary evidence in electronic form generated by a computer; b. 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) of section 65 of the Evidence Act are satisfied, without further proof or production of the original; c. In view of the provisions of section 65(4) of the Evidence Act, a certificate must accompany the electronic record like computer printout, compactdisc, video compact disc or pen drive, pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence; d. Only if the electronic record is duly produced in terms of section 65B of the Evidence Act, that the question of its genuineness would arise. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if the requirements of section 65B of the Evidence Act is not complied with; e. An electronic record by way of secondary evidence shall not be admitted in evidence unless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also, we find that the parallel situation as to the decision of Premier Instruments & Controls (supra). 13. Therefore, the printout generated from the PC seized cannot be admitted into evidence for nonfulfillment of statutory condition of Section 36B of the Central Excise Act, 1944." (emphasis supplied) 17. In Popular Paints and Chemicals vs. Commissioner of Central Excise and Customs, Raipur-Excise Appeals No. 52738 of 2016 decided on 06.08.2018, the Tribunal observed: "15.2. Thus, it has been clearly laid down by the Supreme Court that the computer printout can be admitted in evidence only if the same are produced in accordance with the provisions of Section 65B (2) of the Evidence Act. A certificate is also required to accompany the said of computer printouts as prescribed under section 65B(4) of Evidence Act. It has been clearly laid down in para 15 of this judgment that all the safeguards as prescribed in Section 65B (2) & (4), 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 tempering, alteration, transposition, excision etc without such safe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 36B (4) is also to substantiate the veracity of truth in the operation of electronic media. We also agree with the contention of the appellants that at the time of sealing and de-sealing of the external data storage device as well as the time of obtaining printouts therefrom, a certificate should have been obtained as per the provision of Section36B of the Act. No such certificate has been brought on record without which the evidentiary value of these printout get vitiated. As no certificate from the responsible person of the Appellants was obtained by the department, the credibility of the computer printout gets vitiated." (emphasis supplied) 19. The aforesaid decisions of the Tribunal, which are in the context of the provisions of section 36B of the Central Excise Act, hold that a printout generated from a secondary electronic evidence that has been seized, cannot be admitted in evidence unless the statutory conditions laid down in section 36B of the Central Excise Act are complied with. The decisions also hold that if the data is not stored in the computer but officers take out a printout from the hard disk drive by connecting it to the computer, then a certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting authority and thereafter the adjudicating authority has to form an opinion whether having regard to the circumstances of the case the statement should be admitted in evidence, in the interests of justice. Once this determination regarding admissibility of the statement of a witness is made by the adjudicating authority, the statement will be admitted as an evidence and an opportunity of cross-examination of the witness is then required to be given to the person against whom such statement has been made. It is only when this procedure is followed that the statements of the persons making them would be of relevance for the purpose of proving the facts which they contain. xxxxxxxxxxxx 28. It, therefore, transpires from the aforesaid decisions that both section 9D(1)(b) of the Central Excise Act and section 138B(1)(b) of the Customs Act contemplate that when the provisions of clause (a) of these two sections are not applicable, then the statements made under section 14 of the Central Excise Act or under section 108 of the Customs Act during the course of an inquiry under the Acts shall be relevant for the purpose of proving the truth of the facts contained in them only when s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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