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2022 (11) TMI 1237 - AT - CustomsPenalty u/s 112 (a) of Customs Duty - Penalty on customs officers - Charge of Abatement - Smuggling - re-assessment of imported goods - exoneration of the charges of “abetting” in the clearance of the impugned goods - HELD THAT:- Appellant 1 has been exonerated of the charge of abetting by the disciplinary authority. That being so, in my the impugned order which hold the appellant 1 guilty of abetting, for imposition of penalty under Section 112 (a) cannot stand. Reliance placed in the case of CC, AMRITSAR VERSUS SHRI PARMINDER JIT SINGH, INSPECTOR AND OTHERS [2013 (7) TMI 377 - CESTAT NEW DELHI] where it was held that when the disciplinary proceedings against the respondents under CCS (CCA) Rules have been dropped, the proceedings for imposition of penalty against them under Section 112(a) of Customs Act, 1962 which are based on the same charges and the same evidence, would also not survive. Reliance placed in the case of SURAJ PRAKASH VERSUS COMMISSIONER OF CUSTOMS, NEW DELHI [2015 (8) TMI 1282 - CESTAT NEW DELHI] where it was held that there is an error which calls for exercise of jurisdiction of the Tribunal under Section 35C(2) for rectification. The adjudicating authority has imposed penalty on the said Inspector on the ground that he has failed to discharge his official duty properly. We are afraid that the said reasoning cannot be adopted for imposition of penalty in terms of Section 114 of the Act, inasmuch as there is nothing on record to show that there was any mens rea on the part of the said appellant so as to abet the illegal export - The Hon’ble Supreme Court in the case of [1979 (3) TMI 205 - SUPREME COURT], has held that lapses or lack of efficiency would not ipso facto constitute a misconduct to attract the penal provisions. As such, in the absence of any evidence to suggest that the appellant had connived with the exporter, we are of the view that non-performance of the duty, by itself, would not call for any penal action on the said appellant. Accordingly, the penalty imposed upon him is set-aside. Positive evidence to that effect is required to be placed and charge of abetting needs to be proved in positive manner. The paragraphs of Show Cause Notice and the impugned order in para 4,2. And 4.3 have been reproduced and any such positive evidence or even the allegation whereby the charge abetting can be sustained, cannot be found - It is also worth noting that the entire case of misdeclaration is based on the forged documents produced for the clearance of impugned goods as have been recorded by the disciplinary authority in para 10.4 of his order by relying on para 16.1 (iv) of the show cause notice. In view of these facts charge of abetting cannot be sustained against the two officers who are appellant. These pronouncements should not be held to mean that officers are not guilty of dereliction of duties as assigned to them as officer of Customs, while allowing the clearance of imported goods. The charges of dereliction of duty cannot be adjudicated in terms of the provisions of Customs Act, 1962 and need to be considered as per CCS Rules. If appellants in the proceedings initiated under the said rules, are found guilty of dereliction of duties assigned in any manner, disciplinary authority is free to proceed against the said officers in manner prescribed, without referring to exoneration of these officers by this order by the charge of “abetting” for imposition of penalty under Section 112 (a) of the Customs Act, 1962. Appeal allowed.
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