Indian Kanoon - Search engine for Indian Law

6. The main evidence relied by the Department is a file marked as Sl.No.109/1 as per mahazar dated 07.08.2013. This document is said to contain the printouts of the date wise sales details of fireworks cleared from the various units such as Karthi Fire Works, Revathi Fire Works Industries, Vadivel Flame Factory, Venus Fire Works, Vadivel Pyro Park and M/s.VPPL for the period from 01.04.2012 to 09.07.2013. The entire duty demand has been quantified on the basis of the above document. Though the said document No.109/1 is said to contain print outs / documents received from Income Tax department vide letter dated 10.10.2013 (para 18.1 & 18.2 of SCN), these were actually seized form the factory premises. Such printouts are not admissible in evidence. Ld. Counsel adverted to Section 36B of Central Excise Act, 1944 and argued that the procedure contemplated in the said section has not been complied by the department while collecting or retrieving the evidence from the computer/laptop/notepad/pen drive and therefore such documents/ printouts are not 'admissible evidences'. He submitted that the appellant has put forward the said grievance in para-5 of his reply to the SCN. Ld. Counsel argued that the hard disc obtained from the factory premises from which printouts were taken at the CFL, Hyderabad also cannot be relied for confirming the duty demand as these have been obtained without following the procedures Excise Appeal No.41747 of 2018 Excise Appeal No.41748 of 2018 Excise Appeal No.41749 of 2018 Excise Appeal No.41750 of 2018 provided in Section 36B of the Central Excise Act, 1944. As per the said provision, the document can be admitted as evidence only after complying with the procedure stated therein. The department has not obtained any certificate from the person who was in-charge of operating the computer stating that the said print outs were taken from the computer that was being used in the ordinary course of business of the company and that the data forms part of the ordinary business transactions of the company. For these reasons, the documents are vitiated and void. He relied upon the following decisions :

Excise Appeal No.41747 of 2018 Excise Appeal No.41748 of 2018 Excise Appeal No.41749 of 2018 Excise Appeal No.41750 of 2018

8. It is submitted by Learned Counsel that apart from the file marked as Sl.No.109/1 and the hard disc recovered from the factory premises, the other evidence relied by the adjudicating authority is the statement of Shri S.G.Subbiah who is the Sales Tax Consultant of the appellant. The said statement cannot be accepted as evidence without complying with the procedure contemplated in Section 9D of Central Excise Act, 1944. The appellant was not afforded an opportunity of cross examining of Shri Subbiah. Therefore his statement cannot be relied.

20. Countering the argument of Ld. Counsel that computer printouts contained in File No.109/1 and the hard disc etc. are not admissible evidences, he adverted to the discussions of the adjudicating authority in para 41.8.

21. Ld. A.R argued that Managing Director of VPPL and his son Mr. Vasant Vikas admitted that the details in the printouts retrieved from the CPU were fed in the computer by their employees. The data in such print outs seized from the factory matched with the document retrieved by CRL, Hyderabad. As their own Director had admitted that sales details were fed into the computer by the employees, there is nothing to disbelieve the data given in the computer printouts.

Excise Appeal No.41747 of 2018 Excise Appeal No.41748 of 2018 Excise Appeal No.41749 of 2018 Excise Appeal No.41750 of 2018

32. Coming to the evidence gathered by the department, it is seen that the main evidence relied is the File Sl.No.109/1 (Annexure A-23) and the hard disc of the CPU seized from the factory premises. On perusal of para-4 of SCN, it is seen that File No.109/1 is a file containing computer printouts of date wise sales details of fireworks of the various units. The hard disc from the CPU was sent to Central Forensic Laboratory (GQED), Hyderabad and the printouts were retrieved by the said laboratory. It is also seen that the Department of Income Tax had conducted a search/survey at the premises of the appellant and had seized some documents. In para 11 of the SCN, it is stated that vide letter dt. 10.10.2013, the photocopies of such documents seized by the Income Tax Department were forwarded to the investigating officers of this case. It is alleged that the sales details in the printouts seized by the Income Tax Department and contained in File No.109/1 matched with the details available in the printouts retrieved from the hard disc of the CPU seized at the factory premises of M/s.VPPL. Para 4.1.3 of the SCN reads as under :