The Customs, Excise and Service Tax Appellate Tribunal (CESTAT) Bench at Kolkata has set aside the excise duty demand against clandestine removal of goods based on computer printouts and private records.
It was submitted that the entire demand in the Notice has been made based on the Sales Register (Computer Printouts) without satisfying conditions of Section 36B(2)/36B(4) of the Central Excise Act, 1944. Shri G.D. Agarwal, Constituent Attorney has disowned the computer printouts.(ii) Under Section 36B, Computer printouts are not admissible in evidence as conditions under section 36B(2)/36B(4) are not satisfied.
Under Section 36B Computer Printout is “deemed document” admissible in evidence only if condition thereunder are satisfied.
In the present case, no Certificate under section 36B(4) from a person occupying a responsible position in relation to operation of the device is obtained. As per the impugned order the entry in computer was done by Shri Chittaranjan Bhukta or Sri Rajeev Agarwal or Sri Manoj Kumar Sahoo, however, no certificate was obtained from any of them. In this regard, the Appellants relied on the decision of the Tribunal in the case of CCE Vs. Shivam Steel Corporation.
Telephone Operators attended the printing of computer printouts at the DGCEI office. He was not holding any responsible official position in relation to the operation of relevant devices or management of relevant activities. Certificates given by him will not satisfy the requirement as provided under Section 36B. The question of genuineness or otherwise of computer printout will arise only if conditions of Section 36B are satisfied.
Any admission of clandestine removal as per computerized sale register is not relevant unless conditions of Section 36B are satisfied. Provisions of Section 36B are mandatory in nature. Computer printout/electronic record cannot be proved by oral evidence.
It was submitted that Statements of person/witness relied on in the Notice are not examined in chief and not allowed Cross Examination in accordance with Section 9D. Hence, such a statement cannot be a relevant piece of material, citing many earlier decisions.
It was thus contented that the entire demand is based on private records. There is no corroborative evidence available to substantiate the allegations of clandestine clearances.
No contra material brought on record to prove clandestine removal. Buyer mentioned on those invoices not verified.
Thus, it was observed that, “the investigation has not brought in any corroborative evidence to substantiate the allegation of clandestine removal.”
It was thus held by the CESTAT bench of Ashok Jindal, Member (Judicial) and K. Anpazhakan, Member (Technical) that the investigation has failed to establish the alleged clandestine clearance of goods by the Appellants and hence the demands confirmed in the impugned order are not sustainable.
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