ADDITIONAL DIRECTOR GENERAL ADJUDICATION, DIRECTORATE OF REVENUE INTELLIGENCEversusSURESH KUMAR AND CO. IMPEX PVT. LTD. & ORS.

         [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.

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                           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. Nisha Bagchi, Sr.
     Advs., Digvijay Dam, Amit Sharma B., Shaurya R Rai, Gurmeet
     Singh Makker.
     Advs. for the Respondents:
     Ashish Batra, Amit K. Nain, Wattan Sharma, Kartik Yadav.

               Judgment / Order of the Supreme Court

                                 Order

1.   Permission for amendment of appeal(s) is granted.
2.   These statutory appeals under Section 130E of the Customs Act,
     1962 (for short “the Act, 1962”) are at the instance of the Revenue
     and are directed against the judgment and order passed by the
     Customs, Excise and Service Tax Appellate Tribunal (for short “the
     CESTAT”), New Delhi dated 17.04.2018, by which the appeals filed by
     the respondents-assessees herein came to be allowed and thereby
     the order in original dated 17.07.2017 passed by the Additional
     Director General (Adjudication), Directorate of Revenue Intelligence,
     New Delhi imposing penalty upon the respondents herein came to
     be set aside.
3.   It appears from the materials on record that the respondents herein
     were engaged in the business of importing branded food items from
     various countries.
4.   After the import of the branded food items, they were being sold in
     Delhi and Mumbai, respectively. Acting upon the information, the
     business as well as the residential premises of the respondents were
     raided, and an extensive search was undertaken by the officials of
     the department. In the course of various searches, the department
[2025] 8 S.C.R.                                                       2371

     Additional Director General Adjudication, Directorate of Revenue
       Intelligence v. Suresh Kumar and Co. Impex Pvt. Ltd. & Ors.

      was able to procure evidence which prima facie established that
      the respondents had short paid the duty on the import of the goods
      in question. The investigation revealed that while filing the Bills of
      Entry for the imported goods, there was a failure to declare the actual
      RSP/MRP at which the goods were being sold to the ultimate
      consumers.
5.    Thus, it is the case of the revenue that the importers were thereby
      declaring lower RSP/MRP, which resulted in evasion of duties.
6.    In such circumstances, referred to above, a show cause notice dated
      06.06.2016 came to be issued to the respondents, calling upon
      them to show cause as to why the demand for differential duties
      of (a) Rs.9,24,50,644/- be recovered from the respondent no.1 and
      (b) Rs.9,83,614/- be recovered from the respondent no.2, respectively.
      The show cause notice also called upon the respondents to show
      cause as to why interest and penalty should not be imposed and
      the imported goods be confiscated.
7.    The show cause notice was adjudicated by the Adjudicating Authority
      and vide the Order in original dated 17.07.2017, the Commissioner
      confirmed the show cause notice and thereby raised a demand with
      interest and penalty. The order in original passed by the Adjudicating
      Authority came to be challenged before the CESTAT by filing appeals.
8.    It appears on plain reading of the entire impugned order that the
      CESTAT reached the conclusion that the documents relied upon by
      the department for the purpose of proceeding against the respondents
      herein could not have been made admissible in evidence, in view
      of non-compliance of the provision of Section 138C(4)of the Act,
      1962. According to the Tribunal, all these documents relied upon
      by the department were collected from the electronic devices of
      the respondents and in such circumstances, it was expected of the
      officials to strictly comply with the provisions of Section 138C(4) of
      the Act, 1962.
9.    The Tribunal, while allowing the appeals filed by the respondents
      herein, clarified that an argument was canvassed before it on behalf
      of the respondents herein as assessees as regards Section 138B of
      the Act, 1962, however, since the Tribunal was inclined to allow the
      appeals only on the ground of non-compliance of Section 138C(4)
      of the Act, 1962, it did not deem fit to go into any other issues.
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10. Thus, the appeals filed by the respondents before the Tribunal came
    to be allowed.
11. The Tribunal, while allowing the appeals, made the following
    observations:-
          “11. Upon perusal of the judgment of the Hon’ble Supreme
          Court in the case of Anvar P.V.(supra), we note that the
          Apex Court has categorically laid down the law that
          unless the requirement of Section 65B of the Evidence
          Act is satisfied, such evidence cannot be admitted. In any
          proceeding. We note that the Section 138C of the Customs
          Act is pari materia to Section 65B of the Evidence Act.
          Consequently, the evidence in the form of computer print-
          outs etc. recovered during the course of investigation can
          be admitted as in the present proceedings only subject
          to the satisfaction of the sub-section (2) of Section 138C.
          This refers to the certificate from a responsible person in
          relation to the operation of the relevant lap-top/computer.
          After perusing the record of the case, we note that in
          respect of the electronic documents in the form of computer
          print-outs from the seized lap-tops and other electronic
          devices have not been accompanied by a certificate
          as required by the Section 138C(2) as above. In the
          absence of such certificate, in view of the unambiguous
          language in the judgment of the Hon’ble Supreme Court
          (supra), the said electronic documents cannot be relied
          upon by the Revenue for confirmation of differential duty
          on the appellant. In the present case, the main evidence
          on which, Revenue has sought to establish the case of
          under-valuation and mis-declaration of the imported goods
          is in the form of the computer printouts taken out from
          the laptops and other electronic devices seized from the
          residential premises of Shri Nikhil Asrani, Director in respect
          of which the requirement of Section 138C(2) has not been
          satisfied. On this ground, the impugned order suffers from
          uncurable error and hence, is liable to be set aside.
          12. The ld. AR for Revenue relied upon the decision of the
          Tribunal in the case of M/s. Laxmi Enterprises (supra) in
          which the Tribunal upheld the charge of under-valuation and
[2025] 8 S.C.R.                                                           2373

   Additional Director General Adjudication, Directorate of Revenue
     Intelligence v. Suresh Kumar and Co. Impex Pvt. Ltd. & Ors.

           demand for differential duty. In the said decision, Tribunal
           overruled the objection of the appellant in connection with
           Section 138C, by holding that the documents printed out
           from lap-top will be admissible as evidence in view of the
           fact that the truth of such documents stand admitted by
           the proprietor in his statement.
           We have gone through the said decision of the Tribunal
           and we note that the judgement of the Hon’ble Supreme
           Court in the case of Anvar P.V. (supra) has not been
           cited and was never brought to the notice of the Bench.
           Consequently, we are of the view that the decision in the
           case of Laxmi Enterprises is not applicable to the facts
           of the present case.
           13. It is submitted by the ld. Counsel for the appellant that
           the adjudicating authority had not examined the witnesses,
           as per the provisions of Section 138B of the Act, 1962. He
           has relied upon the decision of Hon’ble Delhi High Court,
           in the case of J&K Cigaratte - Vs. - Collector of Customs -
           2009 (242) ELT (Del.). In that case, the Hon’ble High Court,
           while dealing with Section 9D(1) of the Central Excise Act,
           1944, (Pari materia to Section 138B of the Customs Act,
           1962) have held that the procedure as prescribed in the
           statute is required to be followed for proving the truth of
           the statement. The said decision of the Hon’ble Delhi High
           Court has also been relied upon by the Hon’ble Punjab
           & Haryana High Court, in the case of G-Tech Industries -
           Vs. - Union of India-2016 (339) ELT 209 (P&H). We
           find force in the submissions of the ld. Counsel for the
           appellant that the adjudicating authority had not followed
           the procedures prescribed under Section 138B of the Act,
           1962. We have already observed that the demand of duty
           cannot be sustained, as the evidences as available for the
           alleged under valuation cannot be accepted under the law,
           as per the mandates of Section 138 C of the Act. Hence,
           there is no need to discuss the said issues, as raised by
           the appellants regarding consideration of the Provisions
           of Section 138B ibid.
           14. In view of the above discussions and analysis, we do
           not find any merits in the Impugned order, In confirming
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          the adjudged demands against the appellants. Therefore,
          the impugned order is set-aside and the appeals filed by
          the appellants are allowed.”
12. In such circumstances, referred to above, the revenue is here before
    this Court with the present appeals.
13. We heard Ms. Nisha Bagchi, the learned senior counsel appearing
    for the revenue and Mr. Ashish Batra, the learned counsel appearing
    for the respondents.
14. The learned counsel appearing for the revenue would vehemently
    submit that the Tribunal committed a serious error in allowing the
    appeals filed by the assessee on the ground of non-compliance of
    Section 138C(4) of the Act, 1962. She would submit that there is
    cogent and sufficient evidence on record to indicate compliance of
    Section 138C(4) of the Act, 1962 in substance.
15. She would further submit that the documents collected from the
    electronic devices owned by the assessees at the time of search
    have been duly acknowledged by the assessees in their statements
    recorded under Section 108 of the Act, 1962.
16. With a view to fortify her submissions noted aforesaid, she placed
    strong reliance on the decision of this Court in the case of Arjun
    Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Others
    reported in (2020) 7 SSC 1, more particularly, the observations made
    by the Court in Paras 51 and 52, respectively.
17. The paras 51 and 52 respectively read thus:-
          “51. On an application of the aforesaid maxims to the
          present case, it is clear that though Section 65-B(4) is
          mandatory, yet, on the facts of this case, the respondents,
          having done everything possible to obtain the necessary
          certificate, which was to be given by a third party over
          whom the respondents had no control, must be relieved
          of the mandatory obligation contained in the said sub-
          section.
          52. We may hasten to add that Section 65-B does not speak
          of the stage at which such certificate must be furnished to the
          Court. In Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10
[2025] 8 S.C.R.                                                             2375

   Additional Director General Adjudication, Directorate of Revenue
     Intelligence v. Suresh Kumar and Co. Impex Pvt. Ltd. & Ors.

           SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 :
           (2015) 1 SCC (L&S) 108] , this Court did observe that such
           certificate must accompany the electronic record when the
           same is produced in evidence. We may only add that this is
           so in cases where such certificate could be procured by the
           person seeking to rely upon an electronic record. However,
           in cases where either a defective certificate is given, or in
           cases where such certificate has been demanded and is
           not given by the person concerned, the Judge conducting
           the trial must summon the person/persons referred to in
           Section 65-B(4) of the Evidence Act, and require that such
           certificate be given by such person/persons. This, the trial
           Judge ought to do when the electronic record is produced
           in evidence before him without the requisite certificate in the
           circumstances aforementioned. This is, of course, subject
           to discretion being exercised in civil cases in accordance
           with law, and in accordance with the requirements of justice
           on the facts of each case. When it comes to criminal
           trials, it is important to keep in mind the general principle
           that the accused must be supplied all documents that the
           prosecution seeks to rely upon before commencement of
           the trial, under the relevant sections of the CrPC.”
18. In the course of the hearing of these appeals, the learned counsel
    appearing for the revenue provided us with a compilation consisting
    of documents in the form of Record of Proceedings dated 06.07.2015,
    21.07.2015 and 21.04.2016 respectively.
19. The Record of Proceeding dated 06.07.2015 reads thus:-
           “In connection with the investigations in respect of
           imports made by M/s Suresh Kumar & Co. (Impex) Pvt.
           Ltd. (SKCO) A-17, Sonu Tower, IInd Floor, Dr. Mukherjee
           Nagar Commercial Complex, Delhi - 110 009, the officers
           of Directorate of Revenue Intelligence (Hqrs.), 7th floor,
           I.P. Bhawan, I..P. Estate, New Delhi (herein after referred
           to as the DRI) vide Panchnama dated 16.06.2015 drawn
           at office-cum-godown Building No.1092, Bhalswa Village,
           Near Azadpur Bypass, Delhi - 110 033, had resumed
           certain documents, Lenovo Make desktop and one laptops
           from the abovementioned office-cum- godown premises.
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         2. In today’s proceeding, it was proposed to take the
         printouts of documents from the external Hard Disk of make
         WD Elements, bearing S/N WXE1A255RF18, which was
         copied under Records of Proceeding dated 19.06.2015
         and 23.06.2015. Shri Sanjay Gupta, Senior Accountant of
         M/s SKCO and Shri Sushil Kumar, Assistant Accountant
         of M/s SKCO presented themselves at DRI (Hqrs.) office
         to witness the proceedings. One Envelope was produced
         before Shri Sanjay Gupta and Shri Sushil Kumar which
         was sealed with a paper slip containing dated signature
         of Shri Sanjay Gupta, Forensic Expert and DRI Officer.
         The paper seals on the said envelops was checked by
         Shri Sanjay Gupta and Shri Sushil Kumar, which was
         found intact.
         3. Shri Sanjay Gupta removed the paper seal of the said
         envelop and took out one external Hard Disk of make
         WD Elements, bearing S/N WXE1A255RF18. The said
         external hard disk was connected to a computer installed
         in DRI (Hqrs.) office and certain printouts were taken from
         the said hard disk. The printouts were serially numbered
         from 1 to 103. Shri Sanjay Gupta and Shri Sushil Kumar
         put their dated signatures on all the said pages (s. no. 1
         to 103) as a token of their authenticity and their presence
         during the course of printing of these documents from the
         said external hard disk.
         4. Thereafter, the said external Hard Disk of make WD
         Elements, bearing S/N WXE1A255RF18 was put in an
         envelop and the said envelop was sealed with a paper
         slip bearing dated signatures of Shri Sanjay Gupta, Shri
         Sushil Kumar and the DRI Officer.
         5. The proceedings started at 1200 hrs on 06.07.2015 and
         concluded at 2010 hrs on same day i.e. 06.07.2015. Shri
         Sanjay Gupta and Shri Sushil Kumar on being enquired
         by the DRI officers informed that they are fully agree to
         the contents of Records of Proceedings dated 06.07.2015
         and that the contents were recorded as per the actual
         Proceedings”
20. The record of Proceeding dated 21.07.2015 reads thus:-
[2025] 8 S.C.R.                                                            2377

   Additional Director General Adjudication, Directorate of Revenue
     Intelligence v. Suresh Kumar and Co. Impex Pvt. Ltd. & Ors.

           “In connection with the investigations in respect of
           imports made by M/s Suresh Kumar & Co. (Impex) Pvt.
           Ltd. (SKCO A-17. Sonu Tower. IInd Floor. Dr. Mukherjee
           Nagar Commercial Complex. Delhi - 110 009. the officers
           of Directorate of Revenue Intelligence (Hqrs.). 7th floor.
           I.P. Bhawan. I.P. Estate, New Delhi (herein after referred
           to as the DRI) vide Panchnama dated 16.06.2015 drawn
           at office-cum-godown Building No.1092. Bhalswa Village.
           Near Azadpur Bypass. Delhi - 110 033 had resumed certain
           documents. Lenovo Make desktop and one laptops from
           the abovementioned office-cum-godown premises and
           resumed two laptops (one Sony make and one Asus make).
           one I-pad and one I-Phone from the residential premises
           vide Panchnama dated 16.06.2015 drawn at residential
           premises at B-111/303. 19. Rajpur Road. Delhi - 110 054.
           Another laptop of Sony make was submitted in DRI office
           by Shri Nikhil Asrani, Director of M/s Suresh Kumar & Co.
           (Impex) Pvt. Ltd. On 16.06.2015.
           2. In today’s proceeding. It was proposed to take the
           printouts of e mail / documents from the external Hard Disk
           of make WD Elements, bearing S/N WX4 IA45DUD6E,
           which was copied under Records of Proceeding dated
           29.06.2015. Shri Nikhil Asrani, Director of M/s SKCO
           presented himself at DRI (Hqrs.) office to witness the
           proceedings. One envelope was produced before Shri
           Nikhil Asrani which was sealed with a paper slip containing
           dated signature of Shri Sanjay Gupta and DRI Officer. The
           paper seals on the said envelops was checked by Shri
           Nikhil Asrani. which was found intact.
           3. Shri Nikhil Asrani removed the paper seal of the said
           envelop and took out one external Hard Disk of make
           WD Elements, bearing S/N WX41 A45DUD6E. The said
           external hard disk was connected to a computer installed
           in DRI (Hqrs.) office and certain e mail data was extracted
           in Microsoft Outlook and certain printouts were taken from
           the said data. The printouts were serially numbered from l
           to 237. Shri Nikhil Asrani put his dated signatures on all the
           said pages (s. no. I to 237) as a token of their authenticity
           and his presence during the course of printing of these
           documents from the said external hard disk.
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         4. Thereafter, the said external Hard Disk of make WD
         Elements, bearing S/N WX41A45DUD6E was put in an
         envelop and the said envelop was sealed with a paper
         slip bearing dated signatures of Shri Nikhil Asrani and
         the DRI Officer.
         5. The proceedings started at 1640 hrs on 21.07.2015
         and concluded at 2040 hrs on same day i.e. 21.07.2015.
         Shri Nikhil Asrani on being enquired by the DRI officers
         informed that he fully agrees to the contents of Records
         of Proceedings dated 21.07.2015 And that the contents
         were recorded as per the actual proceedings.”
21. The Record of Proceeding dated 21.04.2016 reads thus:-
         “In connection with the investigations in respect of
         imports made by M/s Suresh Kumar & Co. (Impex) Pvt.
         Ltd. (SKCO) A-17, Sonu Tower, IInd Floor, Dr. Mukherjee
         Nagar Commercial Complex, Delhi - 110 009, the officers
         of Directorate of Revenue Intelligence (Hqrs.), 7th floor,
         IP. Bhawan, IP. Estate, New Delhi (herein after referred
         to as the DRI) vide Panchnama dated 16.06.2015 drawn
         at office-cum-godown Building No. 1092, Bhalswa Village,
         Near Azadpur Bypass, Delhi - 110 033, had resumed certain
         documents, Lenovo Make desktop and one laptops from
         the abovementioned office-cum- godown premises and
         resumed two laptops (one Sony make and one Asus make),
         one I-pad and one I-Phone from the residential premises
         vide Panchnama dated 16. 06.2015 drawn at residential
         premises at B-III/303, 19, Rajpur Road, Delhi - 110 054.
         Another laptop of Sony make was submitted in DRI office
         by Shri Nikhil Asrani, Director of M/s Suresh Kumar & Co.
         (Impex) Pvt. Ltd. on 16.06.2015.
         2. In today’s proceeding, it was proposed to take the
         printouts of e mail I documents from the external Hard Disk
         of make WD Elements, bearing S/N WX41A45DUD6E,
         which was copied under Records of Proceeding dated
         29.06.2015. Shri Aseem Asrani, Director of M/s SKCO
         presented himself at DRI (Hqrs.) office to witness the
         proceedings. One envelope was produced before Shri
         Aseem Asrani which was sealed with a paper slip containing
[2025] 8 S.C.R.                                                          2379

   Additional Director General Adjudication, Directorate of Revenue
     Intelligence v. Suresh Kumar and Co. Impex Pvt. Ltd. & Ors.

           dated signature of Shri Nikhil Asrani and DRI Officer. The
           paper seals on the said envelops was checked by Shri
           Aseem Asrani, which was found intact.
           3. Shri Aseem Asrani removed the paper seal of the said
           envelop and took out one external Hard Disk of make
           WD Elements, bearing S/N WX41A45DUD6E. The said
           external hard disk was connected to a computer installed
           in DRI (Hqrs.) office and certain e mail data was extracted
           in Microsoft Outlook and certain printouts were taken from
           the said data. The printouts were serially numbered from 1
           to 97. Shri Aseem Asrani put his dated signatures on all the
           said pages (s. no.1 to 97) as a token of their authenticity
           and his presence during the course of printing of these
           documents from the said external hard disk.
           4. Thereafter, the said external Hard Disk of make WO
           Elements, bearing S/N WX41A45DUD6E was put in an
           envelop and the said envelop was sealed with a paper
           slip bearing dated signatures of Shri Aseem Asrani and
           the DRI Officer.
           5. The proceedings started at 1500 hrs on 21.04.2016
           and concluded at 1705 hrs on same day i.e. 21.04.2016.
           Shri Aseem Asrani on being enquired by the DRI officers
           informed that he fully agrees to the contents of Records
           of Proceedings dated 21.04.2016 and that the contents
           were recorded as per the actual proceedings.”
22. Thereafter, she took us through the statements of Mr. Nikhil Asrani,
    recorded under Section 108 of the Act, 1962 dated 03.08.2015,
    21.9.2015, 22.4.2016 and 17.5.2016 respectively wherein Nikhil
    Asrani, has stated as under:-
           “Statement dated 03.08.2015
           “I have been shown the Record of Proceeding dated
           21.07.2015. I have put my dated signatures on the same
           as a token of having seen the same. I agree with the
           contents of the Record of Proceedings dated 21.07.2015
           as the same have been correctly recorded. I have been
           shown the documents serially numbered from Page No. 1
           to 237, which were printed out from e-mail data under the
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         Record of Proceeding dated 21.07.2015. I was present
         during the course of printing of the said documents. The
         said documents (page No. 1 to 237) pertain to my e- mail
         nikhil@skco.in. I have put my dated signature all the pages
         as a token of their authenticity. On being asked, I explain
         the said documents as under.”

         Statement dated 21.9.2015
         “I have been shown the statement dated 11.09.2015
         containing two pages of Shri Suresh Kumar Asrani recorded
         under section 108 of the Customs Act, 1962. I have read
         and completely understood the same. I have put my dated
         signatures on both the pages of the said statement. I
         fully agree with the contents of the said statement dated
         11.09.2015 of Sh. Suresh Kumar Asrani.”

         Statement dated 22.4.2016
         “I have been shown the Record of Proceeding dated
         21.04.2016 and print out of pages No. 1 to 97. I have put
         my dated signatures on the said Record of Proceeding
         dated 21.04.2016 and all the 97 pages in the token of
         having seen the same and their authenticity.”

         Statement dated 17.5.2016
         I have been shown the Record of Proceeding dated
         06.07.2015 and print out of pages No. 1 to 103 I have put
         my dated signatures on the said Record of Proceeding
         dated 06.07.2015 and all the 103 pages in the token of
         having seen the same and their authenticity.”
23. She also invited our attention to the statement of one Mr. Aseem
    Asrani recorded on 04.08.2015 wherein Mr. Aseem Asrani stated
    as under:-
         “My elder brother Shri Nikhil Asrani is the right person to
         tell about the same. I am also one of the two Directors in
         M/s Suresh Kumar & Co. (Impex) Pvt. Ltd. (SKCO). On
         being asked, I state that my elder brother Shri Nikhil Asrani
         is also a Director in M/s Suresh Kumar & Co. (Impex) Pvt.
         Ltd. I have been staying at the above address for the last
[2025] 8 S.C.R.                                                            2381

   Additional Director General Adjudication, Directorate of Revenue
     Intelligence v. Suresh Kumar and Co. Impex Pvt. Ltd. & Ors.

           ten years along with my parents and brother’s family. I
           am looking after warehousing, logistics and dispatches
           of M/ s. SKCO.”
24. In the last, she invited our attention to the statement of Mr. Suresh
    Kumar Asrani recorded on 11.09.2015, wherein the following has
    been stated:-
           “I and my wife retired from the directorship of M/s SKCO in
           the year 2008. Thereafter, my sons Shri Nikhil Asrani and
           Shri Aseem Asrani became the directors in M/ s SKCO. Shri
           Nikhil Asrani is the responsible for all the imports made by
           M/s SKCO from 2008. On being asked, I state that my son
           Shri Nikhil Asrani was dealing with the foreign suppliers
           related supply of food stuffs and price negotiation etc. On
           being further asked, I state that M/s S.N. Agrotech was
           founded in the month of January, 2014 in my proprietorship.
           M/s S.N. Agrotech has its registered office at 21/31, Mall
           Road, Delhi working with nil staff. My son Shri Nikhil Asrani
           is looking after all the work of M/s S.N. Agrotech. On being
           further asked, I state that this is only a residential flat in
           the name of myself and my wife Smt. Neerja Asrani. This
           address is being only used as postal address of M/ s S.N.
           Agrotech. On being further asked, I state that it is vacant
           and locked since the date of purchase.”
25. In such circumstances, referred to above, the learned counsel
    appearing for the revenue would submit that there being merit in the
    appeals filed by the revenue, the same be allowed and the impugned
    order be set aside.
26. On the other hand, the learned counsel appearing for the respondents,
    while vehemently opposing these appeals would submit that no
    error, not to speak of any error of law, could be said to have been
    committed by the Tribunal in allowing the appeals on the ground of
    non-compliance of the mandatory provision of Section 138C(4) of
    the Act, 1962.
27. The learned counsel would submit that recording of statements
    under Section 108 of the Act, 1962 containing acknowledgment
    of documents being collected from the electronic devices of the
    assessees cannot be termed as due compliance of Section 138C(4)
    of the Act, 1962.
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28. The learned counsel would also seek to rely upon the very same
    judgement of this Court upon which the revenue has placed reliance.
    However, he would like to place reliance on the observations made
    in paragraphs 38 and 45, respectively therein.
29. The learned counsel would submit that in the event this Court
    would like to allow the appeals of the revenue, then in such
    circumstances, the matter be remanded to the Tribunal for the
    purpose of considering the other submissions which were canvassed
    by the respondents before the Tribunal and the Tribunal thought fit
    not to deal with those submissions, as the Tribunal was inclined to
    allow the appeals only on the ground of non-compliance of Section
    138C(4) of the Act, 1962.
30. The only question that falls for our consideration is whether the
    Tribunal committed any error in passing the impugned order?
31. Section 138C(4)reads thus:-
          “138C. Admissibility of micro films, facsimile copies of
          documents and computer print outs as documents and
          as evidence.—

          (1) xxx    xxx      xxx
          (2)        xxx      xxx      xxx
          (3) xxx    xxx      xxx

          (4) In any proceedings under this Act and the rules made
          thereunder where it is desired to give a statement in
          evidence by virtue of this section, a certificate doing any
          of the following things, that is to say,—
          (a) identifying the document containing the statement and
          describing the manner in which it was produced;
          (b) giving such particulars of any device involved in the
          production of that document as may be appropriate for
          the purpose of showing that the document was produced
          by a computer;
          (c) dealing with any of the matters to which the conditions
          mentioned in sub-section (2) relate,
[2025] 8 S.C.R.                                                            2383

   Additional Director General Adjudication, Directorate of Revenue
     Intelligence v. Suresh Kumar and Co. Impex Pvt. Ltd. & Ors.

           and purporting to be signed by a person occupying a
           responsible official position in relation to the operation of
           the relevant device or the management of the relevant
           activities (whichever is appropriate) shall be evidence of
           any matter stated in the certificate; and for the purposes
           of this sub-section it shall be sufficient for a matter to
           be stated to the best of the knowledge and belief of the
           person stating it.”
32. Sub-section 4 of Section 138C makes it abundantly clear that if
    any statement is to be read into evidence and such documents are
    computer printouts, then a certificate has to be obtained in accordance
    with (a), (b) and (c) of sub-section 4, referred to above.
33. The Indian Evidence Act also declares that the expressions “Certifying
    Authority”, “electronic signature”, “Electronic Signature Certificate”,
    “electronic form”, “electronic records”, “information”, “secure
    electronic record”, “secure digital signature” and “subscriber” shall
    have the meanings respectively assigned to them in the Information
    Technology Act.
34. At this stage, we must look into Sections 65A and 65B of the Indian
    Evidence Act. The same read thus:-
           “65A. Special provisions as to evidence relating to
           electronic record.—The contents of electronic records may
           be proved in accordance with the provisions of Section 65B.
           65B. Admissibility of electronic records.—(1) Notwithstanding
           anything contained in this Act, any information contained
           in an electronic record which is printed on a paper, stored,
           recorded or copied in optical or magnetic media produced
           by a computer (hereinafter referred to as the computer
           output) shall be deemed to be also a document, if the
           conditions mentioned in this section are satisfied in relation
           to the information and computer in question and shall be
           admissible in any proceedings, without further proof or
           production of the original, as evidence of any contents of
           the original or of any fact stated therein of which direct
           evidence would be admissible.
           (2) The conditions referred to in sub-section (1) in respect
           of a computer output shall be the following, namely—
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        (a) the computer output containing the information was
        produced by the computer during the period over which
        the computer was used regularly to store or process
        information for the purposes of any activities regularly
        carried on over that period by the person having lawful
        control over the use of the computer;
        (b) during the said period, information of the kind contained
        in the electronic record or of the kind from which the
        information so contained is derived was regularly fed into
        the computer in the ordinary course of the said activities;
        (c) throughout the material part of the said period, the
        computer was operating properly or, if not, then in respect
        of any period in which it was not operating properly or
        was out of operation during that part of the period, was
        not such as to affect the electronic record or the accuracy
        of its contents; and
        (d) the information contained in the electronic record
        reproduces or is derived from such information fed into
        the computer in the ordinary course of the said activities.
        (3) Where over any period, the function of storing or
        processing information for the purposes of any activities
        regularly carried on over that period as mentioned in
        clause (a) of sub-section (2) was regularly performed by
        computers, whether—
        (a) by a combination of computers operating over that
        period; or
        (b) by different computers operating in succession over
        that period; or
        (c) by different combinations of computers operating in
        succession over that period; or
        (d) in any other manner involving the successive operation
        over that period, in whatever order, of one or more
        computers and one or more combinations of computers,
        all the computers used for that purpose during that
        period shall be treated for the purposes of this section
[2025] 8 S.C.R.                                                            2385

   Additional Director General Adjudication, Directorate of Revenue
     Intelligence v. Suresh Kumar and Co. Impex Pvt. Ltd. & Ors.

           as constituting a single computer; and references in this
           section to a computer shall be construed accordingly.
           (4) In any proceedings where it is desired to give a
           statement in evidence by virtue of this section, a certificate
           doing any of the following things, that is to say,—
           (a) identifying the electronic record containing the statement
           and describing the manner in which it was produced;
           (b) giving such particulars of any device involved in the
           production of that electronic record as may be appropriate
           for the purpose of showing that the electronic record was
           produced by a computer;
           (c) dealing with any of the matters to which the conditions
           mentioned in sub-section (2) relate,
           and purporting to be signed by a person occupying a
           responsible official position in relation to the operation of
           the relevant device or the management of the relevant
           activities (whichever is appropriate) shall be evidence of
           any matter stated in the certificate; and for the purposes
           of this sub-section it shall be sufficient for a matter to
           be stated to the best of the knowledge and belief of the
           person stating it.
           (5) For the purposes of this section,—
           (a) information shall be taken to be supplied to a computer
           if it is supplied thereto in any appropriate form and
           whether it is so supplied directly or (with or without human
           intervention) by means of any appropriate equipment;
           (b) whether in the course of activities carried on by any
           official, information is supplied with a view to its being
           stored or processed for the purposes of those activities
           by a computer operated otherwise than in the course of
           those activities, that information, if duly supplied to that
           computer, shall be taken to be supplied to it in the course
           of those activities;
           (c) a computer output shall be taken to have been produced
           by a computer whether it was produced by it directly or
2386                                                      [2025] 8 S.C.R.

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          (with or without human intervention) by means of any
          appropriate equipment.
          Explanation.—For the purposes of this section any
          reference to information being derived from other
          information shall be a reference to its being derived
          therefrom by calculation, comparison or any other process.”
35. Section 65B(4) of the Indian Evidence Act is pari materia to
    Section 138C(4) of the Act, 1962.
36. Section 65B(4) of the Indian Evidence Act came up for consideration
    before a three judge Bench of this Court in Arjun Panditrao Khotkar
    (supra).
37. This Court was called upon to consider in what manner Section 65B(4)
    should be construed as mandatory and in what manner it should be
    understood to have been duly complied with in its letter and spirit.
    While explaining the mandatory nature of Section 65 B(4) this Court
    applied two Latin maxims.
          “(i) impotentia excusat legem.
          (ii) lex non cogit ad impossibilia.”
38. Two maxims referred to above have been explained by this Court in
    the Presidential Poll judgment reported in (1974) 2 SCC 33.
39. We quote para 15 of the judgment referred to above which reads thus:-
          “15. The impossibility of the completion of the election to
          fill the vacancy in the office of the President before the
          expiration of the term of office in the case of death of
          a candidate as may appear from Section 7 of the 1952
          Act does not rob Article 62(1) of its mandatory character.
          The maxim of law impotentia excusat legem is intimately
          connected with another maxim of law lex non cogit ad
          impossibilia. Impotentia excusat legem is that when
          there is a necessary or invincible disability to perform the
          mandatory part of the law that impotentia excuses. The
          law does not compel one to do that which one cannot
          possibly perform. ‘Where the law creates a duty or charge,
          and the party is disabled to perform it, without any default
          in him, and has no remedy over it, there the law will in
          general excuse him.’ Therefore, when it appears that the
[2025] 8 S.C.R.                                                           2387

   Additional Director General Adjudication, Directorate of Revenue
     Intelligence v. Suresh Kumar and Co. Impex Pvt. Ltd. & Ors.

           performance of the formalities prescribed by a statute has
           been rendered impossible by circumstances over which
           the persons interested had no control, like the act of God,
           the circumstances will be taken as a valid excuse. Where
           the act of God prevents the compliance with the words
           of a statute, the statutory provision is not denuded of its
           mandatory character because of supervening impossibility
           caused by the act of God. (See Broom’s Legal Maxims,
           10th Edn. at pp. 162-63 and Craies on Statute Law, 6th
           Edn. at p. 268.)”
40. Applying the two maxims referred to above, this Court proceeded to
    take the view that though Section 65B4 is mandatory, yet it would
    all depend on the facts of each case, how the same could be said
    to have been duly complied with.
41. In the facts of the said case, this Court said that the respondents had
    done everything possible to obtain the necessary certificate which
    was to be given by a third party over whom the respondents therein
    had no control and, in such circumstances, must be relieved of the
    mandatory obligation contained in the said subsection.
42. We have already reproduced paras 51 and 52 respectively of Arjun
    Panditrao Khotkar (supra) above.
43. Keeping the aforesaid in mind, we are of the view and, more
    particularly, considering the Record of Proceedings duly signed by
    the respondents, including the various statements of the respondents
    recorded under Section 108 of the Act, 1962, that there was due
    compliance of Section 138C(4) of the Act, 1962. When we say due
    compliance, the same should not mean that a particular certificate
    stricto senso in accordance with Section 138C(4) must necessarily
    be on record. The various documents on record in the form of record
    of proceedings and the statements recorded under Section 108 of
    the Act, 1962 could be said to be due compliance of Section 138C(4)
    of the Act, 1962.
44. It is pertinent to note at this stage that at no point of time the statements
    recorded under Section 108 of the Act, 1962 came to be retracted.
45. Even while giving reply to the show cause notice, the contents
    of such statements recorded under Section 108 of the Act,
    1962 were not disputed. This, of course, would be relevant only
2388                                                        [2025] 8 S.C.R.

                            Supreme Court Reports


     insofar as determining whether there has been due compliance
     of Section 138C(4) of the Act, 1962 is concerned. The evidentiary
     value of such Section 108 statements in any other proceedings, if
     any would have to be considered in accordance with law, including
     the compliance of Section 138B of the Act, 1962.
46. At this stage, we must also look into the observations made by this
    Court in the case of “Kum. Shubha @ Shubhashankar vs. State of
    Karnataka and Another,” reported in 2025 SSC online SC 1426 relied
    upon by the learned counsel appearing for the revenue. We quote:-
             “A certificate not given in the prescribed format per se
             will not make it invalid, especially when the authenticity
             of these marked documents is not in dispute.”
47. In view of the aforesaid, we partly allow these appeals of the revenue.
48. The judgment and order passed by the Tribunal is hereby set aside.
    The appeals filed by the assessees before the Tribunal are ordered
    to be restored to its original file and to be reheard by the Tribunal
    on grounds other than Section 138C(4) of the Act, 1962.
49. It is needless to clarify that on remand the Tribunal shall rehear
    the entire appeals on their own merits without being influenced in
    any manner by any of the observations made by this Court. Our
    observations are confined only on the issue of Section 138C(4) of
    the Act, 1962.
50. Pending application(s), if any, stands disposed of.

     Result of the case: Appeals partly allowed.




     †
         Headnotes prepared by: Divya Pandey