TMI Blog2007 (5) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1962 - appeal dismissed - decided against Revenue. - C/222 & 235/2005 - 593 & 594/2007 - Dated:- 21-5-2007 - Dr. S.L. Peeran, Shri T.K. Jayaraman, JJ. REPRESENTED BY : Shri K. Sambi Reddy, JDR, for the Appellant. Shri G. Shiva Dass, Advocate, for the Respondent. [Order per : T.K. Jayaraman, Member (T)]. These appeals have been filed by the Revenue against the Order-in-Original No. 11/2004-Cus. dated 31-3-2004 passed by the Commissioner of Customs Central Excise, Hyderabad-II Commissionerate. 2. The respondents are (i) Shri Rajiv Kumar Agarwal, Deputy Commissioner of Customs Central Excise and (ii) Shri P. Srinivas, Superintendent of Customs Central Excise, Hyderabad. The brief facts are that M/s. Pashupathi T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner has relied on the Tribunal findings in the matter of Commissioner of Customs, New Delhi v. M.I. Khan - 2000 (120) E.L.T. 542 (Tribunal) to drop proceedings against the officers. However, the said case is distinguishable from the present proceedings in that the Show Cause Notice in the present matter is not time barred and also the Adjudicating Authority has found the goods liable for confiscation. The case of Golla Rama Rao v. Union of India - 2000 (124) E.L.T. 112 (Mad.) is also distinguishable as the said alleged acts of the officers as brought out in the Show Cause Notice are clearly not bona fide or in good faith. (ii) Further, Section 155 of the Customs Act would not be applicable to the said adjudication proceedings under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Advocate argued that the samples of the bulk drugs were given to the Officers by the exporter and the test reports indicated the product to be bulk drug. The DRI also tested the samples available with the ICD and the said samples were of bulk drugs only. The goods imported at Dubai are also Naproxen only and not chalk. Therefore, there is no evidence that the action of the Officers rendered the goods liable for confiscation. (iii) The allegation against the Officers in respect of the consignments, which were detained is that they had not drawn sample at the time of giving the let export permission, but, have attempted to antedate the drawal of sample to establish that they have either ordered for or drawn the sample and they have, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department inasmuch as no appeal has been filed by the Revenue. Once the department has accepted one adjudication order, which was part of the same adjudication proceedings on identical circumstances, the department cannot choose to appeal against the other two adjudication orders. The following case-laws were relied on:- (a) Birla Corporation Ltd. v. CCE - 2005 (186) E.L.T. 266 (S.C.) (b) CCE, Navi Mumbai v. Amar Bitumen Allied Products Pvt. Ltd. - 2006 (202) E.L.T. 213 (S.C.) (c) CCE, Hyderabad v. Novapan Industries Ltd. - 2007 (209) E.L.T. 161 (S.C.) = 2007 (79) RLT 237 (S.C.) (d) Jyothy Laboratories Ltd. Am. v. CCE, Calicut - 2007 (78) RLT 276 (CESTAT-Bang.) (vi) The Tribunal, in the case of CC, New De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mporter or exporter who actually handle the goods. Consequently penalty under Section 114 cannot be imposed on the Respondents. 6. We have gone through the records of the case carefully. The Show Cause Notice has narrated the role of the respondents in the fraud. It has been alleged that Shri Rajiv Kumar Agarwal, the then Deputy Commissioner of Customs, was aware of the quality of the item being exported. He instructed the Superintendent and the Inspector for speedy clearance of the consignment on the request of Shri Rajnish Agarwal. He has not made any endorsement on the shipping bills for drawal of samples. On learning from Rajnish Agarwal about the detention of the consignment at Nhava Sheva port, he made an antedated endorsement on 8- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Section 155 of the Customs Act would not be applicable to the adjudication proceedings on the ground that Section 155 refers to suits, prosecutions or legal proceedings before the Court. It has further been stated that this position has been brought out in the case of Costao Fernandes v. the State. On going through the Coasto Fernandes decision, we do not find in that decision anywhere holding that Section 155 of the Customs Act would not be applicable to the adjudication proceedings against the Customs Officers. We reproduce Section 155 of the Customs Act. 155. Protection of action taken under this Act. - (1) No suit, prosecution or other legal proceeding shall lie against the Central Government or any officer of the Government or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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