TMI Blog2009 (8) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... t seizure was the basis with all surrounding circumstances to bring this appellant to the charge of abetment of commitment of offence of misdeclaration escaping notice of customs authority from levy of appropriate duty. The appellant was examined soon after inspection by the DRI and his oral evidence was recorded and brought to record. While the appellant was serving as superintendent there was an Inspector called Shri Ajay Kumar who was also serving in the same ICD. When the goods arrived at the ICD and bill of entry was filed that was recorded by the said inspector as per his oral evidence made by him on 7-8-2000 (appearing at page 136 of the appeal folder). But when examination of the contents of the container was required, such examinat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (C) dated 1-4-03 remanded the matter to the learned Adjudicating Authority to grant fair opportunity of trial to the Appellant. That was done by the learned Adjudicating Authority in terms of the impugned order dated 6-6-05 against which the appellant is again in appeal before the Tribunal in second round of litigation. 3. The allegations made against the appellant as to his nexus of the clearance of the goods under misdeclaration as to value and country of origin was examined in de novo adjudication. Learned Adjudicating Authority made serious effort to examine entire issue in terms of paragraph 32 to para 37 of the impugned order. That authority came to the conclusion that the appellant had violated rule of duties and acted in breach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... importer was let off by order of Tribunal dated 18-6-04. Accordingly this appellant cannot be held guilty by the impugned order. The appellant fully agreed with description of goods he had examined and allowed the same to go. But DRI made out a case against him recording evidence from the importer against the appellant. But such statement was subsequently retracted. A Deputy Commissioner was incharge of the ICD. But he was not brought to record for the allegation made by DRI. Similarly the Inspector Shri Ajay Kumar did not face charges although he failed in his duty. The appellant pleaded that he shall be benefited by the decision of the Apex Court in the case of Bhola Ram Kushwaha v. State of Madhya Pradesh reported in 2000 (93) ECR 577 (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is he was not the examiner of the goods. Appellant s contention that he directed the Inspector Shri Ajay Kumar to examine the goods does not come out from any evidence for the reason that Shri Ajay Kumar on 18-7-2000 by his oral evidence stated that the appellant while acting as superintendent told him that he will take the case of examination of the imported cargo. This is apparent from page 133 of the appeal folder. The inspector also at page 134 categorically stated that he had not examined the goods. This evidence he has given when the statement of the appellant was confronted to him. This is a clear rebuttal, shifting the burden of proof to the appellant by the inspector concerned. Added to that, the Inspector no doubt agreed that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvolvement as above remained un-rebutted. Also there is nothing to speak that misdeclared goods were not allowed by the appellant to leave the ICD and by no means interest of revenue was prejudiced by Appellant. When no piece of evidence was led by Appellant to speak in favour of the appellant, the appellant is not entitled to be absolved from the charge and liability to penalty. 11. In the course of examination it was noticed that the Inspector Shri Ajay Kumar is also part of system who agreed in page 137 that he has entered the bill of entry in the records of the ICD. He had the responsibility of recording the rate of duty and other particulars of the bill of entry. In the same page also he has stated that the bill of entry was processe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay from the fours of Apex Court decision. 13. The appellant relied on the decision of the Tribunal in the case of CC, New Delhi v. M.I. Khan (supra) is in relation to immunity granted under Customs Act, 1962. In that case, the Commissioner himself had dropped the proceeding which was found to be without any legal infirmity. The appellant submits that he should have been served a notice under Section 155 of Customs Act, 1962 before proceeding against him. We do appreciate that he has right to raise a legal plea although what he had not earlier raised in the first round of litigation before the Tribunal. But we do not find any merit in the plea for the reason that the immunity granted under Section 155 of the Customs Act, 2001 is to bar the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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