TMI Blog2015 (11) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission or omission in relation to import of goods to establish contravention of provisions of Customs Act. Section 112(b) relates to dealing of contraband goods and the appellant is only a branch manager issued bank guarantee. If at all any violation under banking regulations it is for the bank to initiation action and the Bank suspended him and subsequently removed from service in the year 1997. - Decided in favour of Appellant. - Appeal Nos.C/195/2002 & C/209/2002 - FINAL ORDER No.40910-40911/2015 - Dated:- 20-3-2015 - Shri R. Periasami, Technical Member For the Petitioner : Shri A.K.Jayaraj, Advocate For the Respondent : Ms. Indira Sisupal, AC (AR) ORDER The appeals are directed against two Orders-In-Orignal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d commission of the appellant in relation to the imported goods in contravention of any of the provisions of Central Excise Act. Even if there is any violation under banking regulations, Customs Act cannot be invoked for imposition of penalty. Further, he submits that there was no forgery of bank guarantee or any fraudulent issue of bank guarantee as the department have already enforced the said bank guarantee and realised the money from the bank towards the realisation of dues. He also submits that this is not a case where any licence was issued and misused by appellant. He further submits that the only violation brought out in the orders is violation of banking regulations. Therefore, appellant being bank employee who acted bonafidely can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Manager employed in the Bank of Madura. The allegation made in the adjudication order against the appellant is reproduced as under :- 37. Shri A. Vaiyapuri, Manager, Bank of Madura, Bangalore signed the bank guarantees for M/s.Exim Silk without following the rules and with a view to facilitate the illegal import of the goods. It is also clear that he played a role in the illegal transfer of the licence by introducing the licence broker to the licence holder. Thus he has actively abetted the illegal transfer of the licence and misuse of the licence. Hence, he is liable to a penalty under section 112 (a) of the Customs Act, 1962. Identical allegations are made in another OIO dt. 8.2.2002. The allegations made in SCN dt. 17.6.98 are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uarantee and the bank has issued two Demand Drafts dt. 6.8.97 and 4.8.97 for ₹ 5,30,000/- and ₹ 30,000/- respectively. The same was deposited in the Customs with challans. Therefore, it is not the case of forgery of bank guarantee or any fraudulent issue of Bank Guarantee. Further on perusal of the impugned order dt.8.2.2002 adjudicating the SCN dt.17.6.98, the appellant was proposed for imposition of penalty under Section 112(a) of the Customs Act whereas in the adjudication order dt. 8.2.2002, penalty is imposed under Section 112(b). Except for vague allegation, there is no evidence brought out by the department for abetment or collusion or commission or omission in relation to import of goods to establish contravention of pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCN must be limited to the case that is made out therein. The relevant paragraphs of the Supreme Court's order is reproduced as under :- 15. The Tribunal found no legal difficulty in holding that the allegations contained in the third show cause notice should be looked into for the purpose of adjudication of the first and second show cause notices. We find great difficulty in upholding the Tribunals view. As we see it, each show cause notice must be limited to the case that is made out therein by the Revenue. It is not within the jurisdiction of the Tribunal to direct otherwise; to do so is to go beyond its purely adjudicatory function. 16. The appeals are allowed to the extent aforestated. The appeal filed by the Revenue bef ..... X X X X Extracts X X X X X X X X Extracts X X X X
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