Admissibility Of Printouts From Seized Electronic Evidence Requires Certificate U/S 36B Of Central Excise Act: CESTAT

The 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.”

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.

In this case, the assessee imported Automotive Windshield (Automotive Safety Glass) of assorted sizes for various models by classifying them under Customs Tariff Item alleged that the assessee had suppressed the actual transaction value and engaged in under-valuation relying upon the Excel Sheet printout taken from a pen drive of the data retrieved from 'WeChat', sent by Max of M/s. Dongguan Benson Automobile Glass Co. Ltd, China to Rajiv Dhuper, partner of the assessee.

The Excel sheet contained Invoice Numbers, CIF values, Container Numbers, and payment details which was related to the assessee' imports from the supplier. The authorities found that the assessee undervalued the imports to evade payment of duty.

The Principal Commissioner rejected the self-assessed transaction value of the goods and confirmed the demand of differential customs duty. Aggrieved by the decision of Principal Commissioner, the assessee filed an Appeal before Commissioner (Appeals), who rejected the appeal and upheld the order of the Assistant Commissioner. The assessee has challenged the order passed by the Commissioner (Appeals) before the Tribunal.

The assessee contended that the Excel Sheet data retrieved from WE-CHAT and copied in a pen drive, being a secondary electronic evidence, is legally not admissible as evidence and cannot be relied upon to prove undervaluation in the absence of the statutory compliance of producing a mandatory certificate under section 138C of the Customs Act.

Whereas it was contended by the department that the documents received on WeChat revealed that the importer had indulged in suppressing actual invoices depicting the correct transaction value of the goods in order to evade proper duties, and presented fabricated invoices for customs clearances, having lower values for evasion of customs duty.

The Tribunal noted that the printout was taken from secondary evidence namely the pen drive which could not have been considered as evidence in the absence of a certificate under section 138C of the Customs Act.

“If the data is not stored in the computer, but officers take out a printout from the hard disk drive by connecting it to the computer, then a certificate under section 36B of the Central Excise Act is mandatory”, added the Bench.

In view of the above, the Tribunal allowed the appeal.

Counsel for Appellant/ Assessee: Alok Agarwal

Counsel for Respondent/ Department: Nagendra Yadav

Case Title: M/s. Composite Impex v. The Principal Commissioner of Customs (Import)

Case Number: Customs Appeal No. 50955 of 2021

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