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2015 (1) TMI 260 - AT - CustomsPenalty on Examiner or Examining Officer of Customs - Allegation of aiding and abetment - enabling the exporter to claim huge duty drawback - export of old and used readymade garment in the name of new and fresh garments - Held that:- the ingredients for proving the charge of abetment as required under Section 114(iii) has not been brought out in the show cause notice. The Superintendent has admitted that there was a lot of rush in the STP shed and he could not supervise, as required of him. Further, there is no locus-standi of Ramesh Singh & Sanjay Sharma, who are neither exporter, nor CHA. The reference to call records of telephone is also not a conclusive evidence, as the explanation of the appellant that this mobile phone was used by other staff as well as visiting staff of CHA etc., is not found untrue. The dereliction in duty is not a penal offence committed by him for implicating him along with the offence by the exporters, CHAs and others. The ruling rendered in the case of A.P. Sales (2006 (2) TMI 328 - CESTAT, BANGALORE) is exhaustive and deals with the present situation while the situation in the case of Zaki Anwar (2005 (10) TMI 159 - CESTAT, NEW DELHI) is not distinguishable in the present case and so the findings by this Bench in the case of A.P. Sales (supra). The Apex Court in the case of COSTAO FERNANDES (1996 (2) TMI 137 - SUPREME COURT OF INDIA) has clearly held that the Customs Officer is entitled to protection from under Section 155 read with Section 106 of the Customs Act. The ratio of this judgment would apply to the facts of the case. Penalty under Section 114 (iii) of the Customs Act, 1962 is held not sustainable, as the appellant has neither done anything nor omitted to do any act which act or omission would render such goods liable to confiscation, nor he has abetted in doing or in omission of any act which shall attract penalty provisions on him - Decided in favour of appellant.
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