LexADDITIONAL DIRECTOR GENERAL ADJUDICATION, DIRECTORATE OF REVENUE INTELLIGENCE versus SURESH KUMAR AND CO. IMPEX PVT. LTD. & ORS.
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[2025] 8 S.C.R. 2368 : 2025 INSC 1050 Additional Director General Adjudication, Directorate of Revenue Intelligence v. Suresh Kumar and Co. Impex Pvt. Ltd. & Ors. (Civil Appeal No(s). 11339-11342 of 2018) 20 August 2025 [J.B. Pardiwala and K.V. Viswanathan, JJ.] Issue for Consideration Whether the CESTAT erred in passing the impugned order setting aside the penalty imposed upon the respondents-assessees. Headnotes† Customs Act, 1962 – ss.138C(4), 108 – Evidence Act, 1872 – s.65B – Compliance of s.138C(4) – Admissibility of micro films, facsimile copies of documents and computer print outs as documents and as evidence – Admissibility of electronic records – Case of the Revenue that the respondents (engaged in the business of importing branded food items) were declaring lower RSP/MRP of the imported goods, resulting in evasion of duties – Show cause notice issued – Confirmed by Adjudicating Authority, demand raised with interest and penalty – Penalty set aside by CESTAT (Tribunal) holding that the documents relied upon by the department for proceeding against the respondents were collected from their electronic devices and were not admissible in evidence in view of non- compliance of s.138C(4) – Challenge to: Held: There was due compliance of s.138C(4) in the present case – Record of Proceedings were duly signed by the respondents, including the various statements of the respondents recorded u/s.108 – Due compliance does not mean that a particular certificate stricto senso in accordance with s.138C(4) must necessarily be on record – The various documents on record in the form of record of proceedings and the statements recorded u/s.108 could be said to be due compliance of s.138C(4) – A certificate not given in the prescribed format per se will not make it invalid, especially when the authenticity of the marked documents is not in dispute – At no point of time the statements recorded u/s.108 were retracted – [2025] 8 S.C.R. 2369 Additional Director General Adjudication, Directorate of Revenue Intelligence v. Suresh Kumar and Co. Impex Pvt. Ltd. & Ors. Even while giving reply to the show cause notice, the contents of such statements recorded u/s.108 were not disputed – However, this would be relevant only for determining whether there has been due compliance of s.138C(4) – The evidentiary value of such s.108 statements in any other proceedings, if any would have to be considered in accordance with law, including the compliance of s.138B – Order passed by Tribunal set aside – Appeals filed by the assessees before the Tribunal restored – Impotentia excusat legem – Lex non cogit ad impossibilia. [Paras 43-46, 48] Case Law Cited Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Others [2020] 7 SCR 180 : (2020) 7 SCC 1; Kum. Shubha @ Shubhashankar v. State of Karnataka and Another, 2025 SSC online SC 1426 – relied on. In Re Presidential Poll [1975] 1 SCR 504 : (1974) 2 SCC 33 – referred to. List of Acts Customs Act, 1962; Evidence Act, 1872; Information Technology Act. List of Keywords Section 138C(4) of Customs Act, 1962; Compliance of Section 138C(4) of Customs Act, 1962; Section 65B of Evidence Act, 1872; Admissibility of electronic records; Certificate under Section 138C(4) of Customs Act, 1962; Record of Proceedings; Record of Proceedings duly signed; Statements recorded under Section 108 of Customs Act, 1962; Section 108 of Customs Act, 1962 statements; Certificate; Business of importing branded food items; Lower RSP/MRP declared; Actual RSP/MRP; Evasion of duties; Penalty; Documents collected from electronic devices; Laptop; Computer; I-pad; I-Phone; Desktop; Computer print outs; Impotentia excusat legem; Lex non cogit ad impossibilia; Certifying Authority; Certificate not in prescribed format; Electronic signature; Electronic Signature Certificate; Electronic form; Electronic records; Information; Secure electronic record, Secure digital signature; Subscriber; Directorate of Revenue Intelligence; Customs, Excise and Service Tax Appellate Tribunal (CESTAT). 2370 [2025] 8 S.C.R. Supreme Court Reports Case Arising From CIVIL APPELLATE JURISDICTION: Civil Appeal No(s). 11339- 11342 of 2018 From the Judgment and Order dated 17.04.2018 of the Custom Excise Service Tax Appelate Tribunal in CUSTA No. 50095 of 2018, CUSTA Nos. 51918, 51919, and 51920 of 2017 Appearances for Parties Advs. for the Appellant: Vikramjeet Banerjee, ASG, Nachiketa Joshi, Ms. Ni
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