Certificate Not Always Mandatory For Electronic Evidence Under Customs Act: Supreme Court

Last Updated:September 09, 2025, 16:41 IST

The court here partly allowed an appeal filed by Additional Director, General Adjudication, Directorate of Revenue Intelligence against the order passed by CESTAT on April 17, 2018

Supreme Court of India (PTI File)

The Supreme Court has said if any document collected from the electronic devices owned by the assessees under the Customs Act is to be read into evidence, it has to be accompanied by a certificate. However, it should not mean that a particular certificate stricto senso in accordance with Section 138C(4) of the Act 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, could be said to be due compliance of Section 138C(4)of the Act, a bench of Justices J B Pardiwala and KV Vishwanathan said.

The court here partly allowed an appeal filed by Additional Director, General Adjudication, Directorate of Revenue Intelligence against the order passed by the Customs, Excise and Service Tax Appellate Tribunal (for short “the CESTAT"), New Delhi on April 17, 2018.

The Tribunal allowed appeals filed by the respondents-assessees, Suresh Kumar And Co Impex Pvt Ltd & Others and set aside an order imposing penalty upon them for the alleged evasion of duties in import of branded food items.

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.

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.

The revenue’s counsel submitted that the documents collected from the electronic devices owned by the assessees at the time of search have been duly acknowledged by them in their statements recorded under Section 108 of the Act.

The respondent assessee’s counsel, on the opposite, submitted 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.

Examining the matter, the court noted, Sub-section 4 of Section 138C of the Customs Act 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.

Section 138C dealt with admissibility of micro films, facsimile copies of documents and computer print outs as documents and as evidence.

The court noted the Indian Evidence Act also declared that the expressions “Certifying Authority", “electronic signature", “Electronic Signature Certificate", “electronic form", “electronic records", “information", “secure electronic record", “secure digital signature" and “subscriber" would have the meanings respectively assigned to them in the Information Technology Act. It also looked into Sections 65A and 65B of the Indian Evidence Act. “Section 65B(4) of the Indian Evidence Act is para materia to Section 138C(4) of the Act," the bench said.

Section 65B(4) of the Indian Evidence Act came up for consideration before a three judge bench of this Court in Arjun Panditrao Khotkar Vs Kailash Kushanrao Gorantyal and Others (2020), the court pointed out.

The bench noted 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," it said.

The bench further said the two maxims have been explained by this court in the Presidential Poll judgment reported in (1974), stating that 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.

In the instant case, the bench said, “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."

The court also found at no point of time the statements recorded under Section 108 of the Act, 1962 came to be retracted.

“Even while giving reply to the show cause notice, the contents of such statements recorded under Section 108 of the Act were not disputed. This, of course, would be relevant only insofar as determining whether there has been due compliance of Section 138C(4) 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," the bench added.

The court also relied upon Kum Shubha @ Shubhashankar Vs State of Karnataka and Another," reported in 2025, which was cited by the revenue’s counsel, stating, “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." The court finally remanded the matter to the Tribunal to rehear the entire appeals on their own merits, while clarifying that its observations were confined only on the issue of Section 138C(4).

Sanya Talwar

Sanya Talwar, Editor at Lawbeat, has been heading the organisation since its inception. After practising in courts for over four years, she discovered her affinity for legal journalism. She has worked previousl...Read More

Sanya Talwar, Editor at Lawbeat, has been heading the organisation since its inception. After practising in courts for over four years, she discovered her affinity for legal journalism. She has worked previousl...

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