TMI Blog2012 (10) TMI 872X X X X Extracts X X X X X X X X Extracts X X X X ..... n or omission of which rendered the goods liable to confiscation. In the absence of such a positive evidence, the benefit of doubt has to be given to him and therefore, a penalty under the Customs Act, 1962 cannot be imposed on him. We should hasten to mention here that this finding of the Tribunal does not in any way affect the departmental disciplinary proceedings initiated against Shri Kishun Ram for dereliction of duty and that should be decided on the basis of the evidence available on record independently of the findings given herein. Penalty against Shri Shailendra Bahadur, Assistant Chemical Examiner. - There is no allegation that Shri Shailendra Bahadur was in touch with the importer or his agents nor did he take any money from the importer for testing the sample. In the absence of any evidence directly inculpating Shri Shailendra Bahadur in the commission of the offence, we are of the view that imposition of penalty on Shri Shailendra Bahadur cannot sustain in law. - penalty set aside - C/768, 549 and 692/2007 - A/241-243/2012-WZB/C-I(CSTB) - Dated:- 30-3-2012 - S/Shri Ashok Jindal, P.R. Chandrasekharan, JJ. REPRESENTED BY : S/Shri Z.B. Nagarkar, R.B. Pardeshi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Shri Ajay R. Bhan was attempting to arrange certain manipulations with reference to the chemical test report of the goods under importation, but he remained silent and did not inform the Customs of the same. In view of the above acts of omission and commission which rendered the goods liable to confiscation under Section 111(d) (m) of the Customs Act, 1962, Shri Brajesh Tiwari is liable to penalty under Section 112 of the Customs Act. 3.1 The charge against the second appellant, Shri Kishun Ram is that he, when approached by Shri Ajay Bhan along with Shri Santosh Dabhade, he agreed to manipulate the test report of the sample for a monetary consideration of Rs. One lakh which was aimed to facilitate Shri Ajay Bhan to clear the goods through Shri Santosh Dabhade with a false declaration of the goods as ABC dry chemical powder for fire extinguisher. Further, before the test report was signed by the Chemical Examiner, only with the signature of Assistant Chemical Examiner he had handed over the defaced test report with the result suiting the declaration made by the importers/CHA in the bill of entry. For doing this work, Shri Kishun Ram had taken illegal gratification of Rs. One ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Examiner. It appears that the test result had been fabricated to suit the declaration of the goods in the bill of entry. Further, it appears that the copy of the test report after defacing was given to Shri Kishun Ram with his signature so that Shri Kishun Ram could give the test report to Shri Santosh Dabhade as an evidence that the test result had been manipulated. In view of the above acts of omission and commission which have rendered the said goods liable to confiscation under Section 111(d) and (m) of the Customs Act, 1962. Shri Shailendra Bahadur has rendered himself liable to penal action under Section 112(a) and (b) of the Customs Act. 4. The charge against the appellants were confirmed by the adjudicating authority and a penalty of Rs. 3,00,000/- was imposed on Shri Brajesh Y. Tiwari. A penalty of Rs. 1,50,000/- was imposed on Shri Kishun Ram and a penalty of Rs. 50,000/- was imposed on Shri Shailendra Bahadur. 5. The learned counsel for Shri Brajesh Tiwari submits that the finding that Shri Brajesh Tiwari was aware of the misdeclaration is factually incorrect. There is no such admission in his statement and, therefore, the order imposing penalty on him is full of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red in the import documents, but the proprietor of the said firm was Shri Jainarayan Rajbhar. In other words, he knew that there was misdeclaration as to who the importer was. Further, he came to know from Shri Jainarayan Rajbhar that the product under importation was analgin and not ABC dry chemical powder, but he made no attempt to intimate the Customs about the misdeclaration made in the import documentation. It is also on record that a copy of the manipulated test report was also recovered from his office premises. In the light of these evidences, the omission and commission on the part of Shri Brajesh Tiwari abetting the illegal import by M/s. Kalinga Trading Co. is clearly established and, therefore, he is liable to penalty under Section 112(a) of the Customs Act, 1962. However, we notice that the penalty of Rs. 3 lakhs imposed on Shri Brajesh Tiwari is quite stiff considering the fact that he had undertaken the clearance work for small amounts. Accordingly we reduce the penalty on Shri Brajesh Tiwari from Rs. 3,00,000/- to Rs. 75,000/-. 9.2 Coming to the charge against Shri Kishun Ram, the allegation is that he had taken a bribe of Rs. 1,00,000/- from Shri Ajay Bhan with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he commission or omission of which rendered the goods liable to confiscation. In the absence of such a positive evidence, the benefit of doubt has to be given to him and therefore, a penalty under the Customs Act, 1962 cannot be imposed on him. We should hasten to mention here that this finding of the Tribunal does not in any way affect the departmental disciplinary proceedings initiated against Shri Kishun Ram for dereliction of duty and that should be decided on the basis of the evidence available on record independently of the findings given herein. 9.3 As regards the charge against Shri Shailendra Bahadur of abetting the misdeclaration, this again is not borne on evidence available on the record. No doubt Shri Shailendra Bahadur undertook the test of the samples drawn and he found the product to be white powder and not analgin, even though the other testing agencies who tested the same sample came to a different conclusion that the product is analgin. A retest of the remnant sample tested by Shri Shailendra Bahadur also confirmed that the sample was in the form of white powder only. The learned adjudicating authority comes to the conclusion that the sample could have been sub ..... 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