Custom, Excise & Service Tax Tribunal
Sunworld Vitrified Pvt Ltd vs Rajkot on 26 September, 2018
In The Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench At Ahmedabad
Appeal No.E/12955-12956/2014-SM
[Arising out of OIA-RJT-EXCUS-000-APP-35-36-14-15 dated 13.05.2014 passed by the Commissioner of
Central Excise (A) - Rajkot]
M/s Sunworld Vitrified Pvt. Ltd. Appellant
Shaileshbhai Odhavjibhai Marvana
Vs
C.C.E. & S.T. Rajkot Respondent
Represented by:
For Appellant: Mr. S. J. Vyas (Advocate) For Respondent: Mr. K.J. Kinariwala (AR) CORAM:
HON'BLE MR. RAMESH NAIR, MEMBER (JUDICIAL) Date of Hearing/decision:26.09.2018 Final Order No. A/ 12525-12526 /2018 Per: Ramesh Nair Sh. S. J. Vyas Ld. Counsel appearing on behalf of the appellant submits that the demand was confirmed on the charge of clandestine removal of the goods. He submits that for confirmation of the demand the evidence i.e. Pen Drive was relied upon. For relying on any computer data, the Provision of Section 36B has to be followed and only thereafter the computer data/ print out can be accepted as a relied upon documents. He submits that the adjudicating authority has not followed the Provision of Section 36B. On query from the bench he fairly accepted that this issue is being taken first time before this Tribunal. Since the demand is based mainly on Pen Drive, the same will not sustain as the Provision of Section 36B was not complied with by the adjudicating authority.
2|Page E/12955-12956/2014-SM
2. Sh. K. J. Kinariwala, Ld. Assistant Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order.
3. On careful consideration of the submission made by both the sides, I find that the major reliance was made on Pen Drive recovered by the Investigating Office. On perusal of Section 36B, I find that for relying on any computer data, the adjudicating authority has to ensure the provision of Section 36B is followed. However, from the record it appears that he has not followed the Provision of Section 36B. The appellant also not taken this issue before the adjudicating authority.
Since the issue involved a question of law, it can be raised at the Tribunal stage also. Accordingly, entire matter needs to be re-decided after complying the Provision of Section 36B. It is made clear that even if the Provision of Section 36B is not possible, the adjudicating authority is not precluded from adjudicating the matter on the basis of available records. Needless to say that the appellant be given sufficient opportunity of personal hearing before de novo adjudication. Appeal is allowed by way of remand to the adjudicating authority.
(Dictated and pronounced in the open court) (Ramesh Nair) Member (Judicial) Neha