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d) Print outs claimed to have been obtained from computer CPU available at residence to one of the directors M/s. Wilson Paper Mills Pvt. Ltd.

2.1 After retrieving the same with the help of Computer forensic expert, a Show Cause Notice No.V.48/AR-MORBI-DIV.II./144/COMMR./2013 dated 02/07/2013 was issued upon M/s. Wilson Paper Mills Pvt. Ltd proposing demand of Rs. 1,15,72,496/- along with interest and also proposing imposition of penalty. This demand was in regard to alleged clandestine clearance of 1,41,72,571 KGs. of Kraft paper valued at Rs. 24,71,33,466/- during the period from April 2009 to July 2012. The Show Cause Notice also placed heavy reliance on the statements of various people. Apart from M/s. Wilson Paper Mills Pvt. Ltd personal penalties were also proposed to be imposed on various persons including two directors of M/s. Wilson Paper Mills Pvt. Ltd and some buyers who are alleged to have purchased the goods clandestinely cleared from where M/s. Wilson Paper Mills Pvt. Ltd had purchased Kraft paper for the purpose of trading and also alleged suppliers of Kraft papers. The said Show Cause Notice was confirmed vide Order-In- Original No. RAJ-EXCUS-000-HPR.COM-26-15-16 dated 15/3/2016.

3. Being aggrieved by the said Order-In-Original appellants filed the present appeal.

4. Shri D.K. Trivedi, Learned Counsel appearing on behalf of the appellants submits that apart from the print outs claimed to have been obtained from a computer available at residence of director of M/s. Wilson Paper Mills Pvt. Ltd. after reinstallation of deleted data in the CPU by computer forensic experts, the only material available with the department to support allegation of such huge clandestine clearance are.

6|Page E/11176,11177,11179,11190- the period for which computer was used regularly to store/process information.

6. In the present case, it is not in dispute that to store/process information, the data is reconstructed from retrieved data. According to panchnama dated 20-21/07/2012 the case of the department is that data pertaining to clandestine clearance was first maintained in computer available at the factory of M/S. WILSON PAPER MILLS PVT. LTD. The said data was deleted and hard disc was changed, backup of said data was taken and it was stored in another CPU which was subsequently shifted to the house of director of M/S. WILSON PAPER MILLS PVT. LTD. The said backup data was also deleted from the said computer available at residence of director. According to the case of the department said deleted backup data was retrieved with the help of Computer Forensic Experts. It is submitted that Section 36B (2) did not permit retrieving of deleted backups. It is not the case as if original data was retrieved therefore, the printouts did not qualify as evidence as per Section 36B (2). It is his submissions that in the above situation computer printouts are not admissible in evidence as per Section 36B (2) which finds support from the following judgments:-

1. Under whose control
7|Page E/11176,11177,11179,11190-
2. Who entered data.
3. On what basis such data was entered.
4. Who deleted data immediately after completion of search.

7. However, all these things are mentioned in the statements dated 1.7.2013 of Girishbhai (i.e. after nearly one year from panchnama dated 20- 21/07/2012) just to fill up the lacuna and clear the lapse. He submits that CPU was not seized in accordance with proviso of law as there is no mention about the Model, make, Configuration of CPU or its Hard Disc anywhere in the panchnama. Without establishing identity of hardware no reliance can be placed on alleged printouts. He submits that there was serious lacuna as regard computer forensic expert as how is Alpesh Vyas identified as Computer Forensic Expert? No certificate or authorization of Government approved agency was obtained. Panchnama does not disclose that Alpesh Vyas was informed of deleted program yet he is claimed to have recovered data. Software used by Alpesh Vyas is not identified. It is not confirmed that it was authentic and reliable software, neither panchnama nor printouts bear signature of Alpesh Vyas, no statement of Alpesh Vyas was recorded. He further submits that there is serious lapse on the part of the Investigating Officers regarding seizure of CPU. He pointed out following deficiencies: