INTERNATIONAL COMPUTER RIBBON Vs. COMMR. OF C. EX.

JUDGEMENT

(1.) Both Revenue and party are aggrieved with the Order -in -Original No. 15/2001, dated 29 -8 -2001. This is third round of litigation. The matter had been remanded to the Commissioner to supply the appellants with copies of 108 floppies seized from the appellants. Further directions were that principles of natural justice should be observed. The direction given in the second Tribunal's Order No. 882/98, dated 5 -5 -98 as in para 4 of the said order which is extracted herein below : -

(2.) The above direction of the Tribunal is as a consequence of earlier directions given by the Tribunal in Order No. 859/1994, dated 10 -11 -94 [1995 (76) E.L.T. 334 (T)]. The findings recorded by the Tribunal in Para 7 of the said order is extracted herein below : -

(3.) The Commissioner in the impugned order in Para 37.1 has categorically noted that he is discarding the evidence on the floppies on account of the fact that there is loss of partial evidence due to the uncertainty and vulnerability of the information technology against the electronic diseases caused by viruses. He has noted that persistent insistence of the appellant on the production of 108 floppies would be of no consequence as the evidence on 108 floppies stands discarded. He has, however, proceeded to decide the case on the basis of information which had been culled out from the 108 floppies and on the oral evidence recorded to hold that the appellants had indulged in clandestine removal of new computer ribbons in the guise of re -inked /reconditioned /re -filled ribbons without payment of duty during March, 1987 to February, 1991. In effect, the Order -in -Original has been passed in total disregard to the direction given by the Tribunal in the above two noted paragraphs of this order. The grievance of the appellant that the impugned order is not sustainable in law and the fact that relied upon document has not been furnished on the basis of their information said to have been taken from the floppies being not authenticated by person who has taken out the information with proper signatures from the appellant is therefore not reliable evidence and cannot be looked into. It is stated that 108 floppies contained all the details right from the stage of procurement of raw material, accounting and use of the same in the manufacture of final products, receipt of already cleared Computer ribbons for re -inking and cassettes for repair etc. The details stored in the floppies are the only evidence on which the case has been built and, therefore, without supply of said documentary evidence in the form of 108 floppies, the order passed by the Commissioner on mere statements is not sufficient to uphold the charge of clandestine removal. It is stated by the appellants they had produced all the documents to show that imported material had been used for manufacture of floppies and for removal of same on payment of duty and that these documents have not been examined despite clear direction from the Tribunal. It is stated that Annexure III to show cause notice is only a printout of floppies. These printouts are not self -explanatory. These printouts only provide sales details and that the appellants were transferring the stocks from the factory to various depots and effecting sales which is confirmed in the proceedings and statements recorded. That being the case, the basis for the demand cannot be termed "Sales". It is stated that the demands have to be on the basis of removal from the factory. The marketing pattern confirms removal on stock transfer basis and sale from depots/branch offices. Therefore, it is stated that computer printouts are not acceptable for this reason also. It is stated that the entire case being built on 108 floppies for proposing demands and when the Commissioner has given up this vital evidence, nothing sustains for confirming the demand and, therefore, in view of violation of principles of natural justice in not supplying the floppies and floppies being corrupted, the order impugned has to be set aside.