TMI Blog2006 (2) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... ficers. The Commissioner s dropping the demands have been upheld by the Tribunal. Thus, the penalty u/s 114 of the Customs Act is not sustainable, as the appellants have not done or have omitted to do any act which act or omission would render such goods liable to confiscation, nor they have abetted in doing or in omission of such act which shall attract penalty provisions or imposing penalty on them. Both the appeals are allowed with consequential relief by setting aside the impugned order in so far as these appellants are concerned. - HON'BLE DR. S.L. PEERAN, SHRI T.K. JAYARAMAN, JJ. For the Appellant : Shri Venugopal, Advocate For the Respondent : Shri G. Havanur, SDR ORDER S.L. Peeran, Member (J) 1. Both these appeals arise from common OIO 19/05 Adjn Cus., dated 4-7-2005. The appellants were Superintendent and Inspector of Customs Central Excise Vascodama Range. They have been imposed with penalty of Rs. 25,000/- and Rs. 15,000/- in terms of Section 114(i) of Customs Act. The main person against whom the demands have been confirmed is Globe Fashions (Exim) India, Goa. During the period, the said party filed shipping bills for export of the said goods under DEPB Scheme thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough it is not proved that there are some extraneous considerations for their actions I impose penalty on both of them under Section 114(i) of the Customs Act 1962 . Learned Counsel submits that both the officers of the Customs Department had followed the procedures laid down for examination of the goods. They are not required to make 100% examination and they had done their best in checking the goods. They did not find any initial error. They contend that the Commissioner has clearly noted that there was only dereliction of duty. For which they can be proceeded under the CCS Rules and they cannot be charged for imposition of penalty under Section 114(i) as they have neither connived nor indulged in the fraudulent act. They contend that the judgments relied clearly apply to the facts of the case. Hence penalty is required to be set aside. 3. Learned counsel submits that the Inspector Mr. A.V. Naik has already deposited penalty and prays for allowing the appeal with consequential relief. 4. SDR reiterated the finding given by the Commissioner and prayed for upholding the impugned order. 5. On a careful consideration, it is seen that appellants were acting as Superintendent and Inspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings that there is no evidence on record to show that any act or omission on the part of the Respondents has rendered the goods liable for confiscation under Section 113 of the Customs Act. In the appeal filed by the Revenue, it has not been highlighted that there is any material to show that the Respondents had connived with the exporter in misdeclaring the goods. What has been mentioned in the Memorandum of Appeal, filed by the Revenue, only highlights the dereliction of the duty by the Respondents which is not sufficient for imposing penalty under Section 114 of the Customs Act. The learned Advocate has emphasized that there is no allegation or proof of consideration having been demanded by the Respondents or paid or supposed to be paid by the exporter. We also observe that this aspect has also been mentioned in the impugned order. The exporter, Shri Kuldeep Singh, has clearly denied knowing any of the Respondents personally. In his statement, he has only mentioned that one Shri Akhilesh Kala knew the Assistant Collector. But Shri Akhilesh Kala has not been traced out during investigation nor he has participated in the adjudication proceedings. Further again some allegation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in the case of P.K. Sharma v. CC, New Delhi [2002 (148) E.L.T. 658] has also allowed the appeal by setting aside the penalty on the Inspector. Finding recorded in para 5 is reproduced herein below : We have heard the rival submissions. We find that the Department s entire case is built on the date found in the computer entered against the number allotted to the appellant. We note that presently simultaneously data is recorded in the documents and fed into the computer. Thus, there should have been a hard copy of Bill of Entry where the examination report was recorded and was alleged to have been recorded by the appellant. We find that there is no mention whatsoever as to what happened to this hard copy of the Bill of Entry bearing the examination report under the signature of the appellant. Moreover, in the Customs Bills of Entries are not examined by the Inspector on their own but they are allotted the Bill of Entry and marked to the officers concerned. The Department has not produced any evidence to show that this particular bill of entry on which the impugned examination report was recorded, was allotted to or marked to the appellant. 6. The Apex Court in the case of Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would render the transaction uconscientious. As applied to the holder of a forged cheque, to establish good faith there must not only be an absence of knowledge of any invalidity, but an absence of circumstances which would put an ordinarily prudent man upon inquiry. As an element tending to rebut malice in libel and slander, good faith requires proper consideration for the character and reputation of the person whose character is likely to be injuriously affected by the publication. There must be absence, not only of all improper motives, but of negligence. Good faith in adverse possession. In the law of adverse possession, whether general or statute the term means free from a design to defraud those who appear to have a better title than the claimant s. His possession must be free from stealth. Good faith in stock issue. In the valuation of property for which stock in a corporation is issued, good faith consists in the belief that a prudent and sensible man would hold in the ordinary conduct of his own business affairs. 24. The Law Lexicon of British India by P. Ramanatha Iyer (M.L.J.). Good Faith defined. Act XLV of 1860, Section 52; Act IX of 1908, Section 2(7); Act X of 1897, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Both the Courts have found that the defendant or its servants did not break open the godown of Rahamatullah and remove the goods to Sundaram Pillai s godown and that what happened was that on the application of the surety Sundaram Pillai the Excise authorities permitted the transfer of the excisable goods which were slowly purloined from the godown of Rahamatullah, to the well-protected godown of Sundaram Pillai. Point 1 raised by the plaintiff bank rightly failed. 28. Point 2 : I have already reproduced Rule 215 of the Central Excise Rules which states that the provisions of Sections 168, 189 and 192 of the Sea Customs Act has to be applied mutatis mutandis. Therefore, for the words customs house we have to substitute the words bonded warehouse . The cheroot tobacco was in the bonded warehouse of Sundaram Pillai. On the date when the Government attached the cheroot tobacco for the duty payable on the beedi tobacco, the Government was well within its rights to attach the same. The tobacco belonged to Rahamatullah but was in the custody of Sundaram Pillai and the Excise Department attached the tobacco. There is nothing illegal or unlawful in the conduct of the Excise Department. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
