Certificate u/s 36B of Central Excise Act is Mandatory for Admissibility of Printouts fom Seized Electronic Evidence :CESTAT [Read Order]

The New Delhi Bench of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) has ruled that printouts of confiscated electronic evidence cannot be admitted without a certificate, as required by Section 36B of the Central Excise Act.

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Section 36B of the Central Excise Act, 1944 talks about admissibility of microfilms, facsimile copies of documents and computer printouts as documents and as evidence. Section 138C of the Customs Act, 1962 allows certain types of electronic and digital copies of documents to be used as evidence in legal proceedings, just like the original documents.

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Automotive windshields (automotive safety glasses) of different sizes for different models were imported by Composite Impex, the assessee, and were categorized under customs tariff. Max of M/s. Dongguan Benson Automobile Glass Co. Ltd., China, sent an Excel sheet printout of the data retrieved from "WeChat" to the assessee's partner, Rajiv Dhuper, claiming that the assessee had suppressed the actual transaction value and engaged in undervaluation.

Regarding the assessee's imports from the supplier, the Excel file included invoice numbers, CIF values, container numbers, and payment information. In order to avoid paying duty, the assessee undervalued the imports, according to the authorities.

The Principal Commissioner affirmed the petition for differential customs duty and rejected the products' self-assessed transaction value. The assessee, who was upset with the Principal Commissioner's decision, appealed to the Commissioner (Appeals), who dismissed the petition and maintained the Assistant Commissioner's order. Before the Tribunal, the assessee has contested the Commissioner's (Appeals) ruling.

As secondary electronic evidence, the Excel sheet data that was taken from WE-CHAT and copied onto a pen drive, according to the assessee, is not legally admissible as evidence and cannot be used to demonstrate undervaluation if a mandatory certificate is not produced in accordance with section 138C of the Customs Act.

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However, the department argued that the documents obtained on WeChat showed that the importer had suppressed real invoices showing the correct transaction value of the goods to avoid paying the right duties and submitted fake invoices for customs clearances with lower values to avoid paying the right duties.

The Tribunal pointed out that the printout was taken from secondary evidence, specifically the pen drive, which, according to section 138C of the Customs Act, could not have been used as evidence in the absence of a certificate.

The two member bench of Justice Dilip Gupta (President) and P.V. Subba Rao (Technical) has observed that, “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 tribunal allowed the appeal.

To Read the full text of the Order CLICK HERE

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