TMI Blog2022 (11) TMI 1237X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that there is an error which calls for exercise of jurisdiction of the Tribunal under Section 35C(2) for rectification. The adjudicating authority has imposed penalty on the said Inspector on the ground that he has failed to discharge his official duty properly. We are afraid that the said reasoning cannot be adopted for imposition of penalty in terms of Section 114 of the Act, inasmuch as there is nothing on record to show that there was any mens rea on the part of the said appellant so as to abet the illegal export - The Hon ble Supreme Court in the case of [ 1979 (3) TMI 205 - SUPREME COURT ], has held that lapses or lack of efficiency would not ipso facto constitute a misconduct to attract the penal provisions. As such, in the absence of any evidence to suggest that the appellant had connived with the exporter, we are of the view that non-performance of the duty, by itself, would not call for any penal action on the said appellant. Accordingly, the penalty imposed upon him is set-aside. Positive evidence to that effect is required to be placed and charge of abetting needs to be proved in positive manner. The paragraphs of Show Cause Notice and the impugned order in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y liability is Rs 1.65.15.739/- arises on re-assessment of imported goods having total value of Rs 5,87,34,672/-: (i) I impose penalty of Rs 2,00,000/- (Rupees Two Lakhs Only) on Shri C. S. Prasad, then Superintendent of Customs under Section 112 (a) of the Customs Act; (ii) I impose penalty of Rs 2,00,000/- (Rupees Two Lakhs Only) on Shri C. S. Prasad, then Superintendent of Customs under Section 112 (a) of the Customs Act; 1.2 Though the order in original decides the issues against number of persons these two appeals are concerned with the penalty imposed on two of the departmental officers and have been listed as per the direction of the bench contained in orders dated 18.05.2022 and 04.08.2022, reproduced below: Order dated 18.05.2022 This miscellaneous application has been filed by the applicant for early hearing of the appeal. 2.0 The applicant submits that he was working as Superintendent of Central Tax and now retired. Departmental disciplinary proceedings were initiated against him for aiding the clearance of imported goods. This impacted his pension and other benefits. He also submits that he has been acquitted of all the charges frame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning to the same importer viz., M/s. Maxco Traders, was filed and processed at the Air India SATS Terminal, Air Cargo Complex (ACC), Bangalore. The officers of DRI visited ACC on 27.12.2017 and ascertained that the shipment pertaining to both the Bills of Entry i.e. Bills of Entry No.4548614 4549963 both dated 26.12.2017 were already assessed and 'out of charge' given. The officers traced and identified one person by name Shri Krishna Naik (hereinafter referred to as Krishna) who was the 'H' card holder bearing old number 375/2003 and New Card Sl. No.IC/H/152/2015 (issued by the Commissioner of Customs, Bangalore), employed with M/s. The Avenue Logistix, the Custom House Agent, representing M/s. Maxco Traders. Shri Krishna when intercepted was carrying the 'out of charge' order pertaining to both the shipments and when questioned stated that, both the shipments pertaining to Bills of Entry No.4548614 4549963 both dated 26.12.2017 were already given out of charge by the proper officer of customs, and that the said goods are under the custody of the custodian pending delivery of the said goods. The custodian Air India SATS was immediately issued with a let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere initiated against the appellant 1. Though by the impugned order, appellant has been held guilty of abetting , the order dated 18.04.2022 of the disciplinary authority exonerates him of the charge of abetting . As he has been exonerated by the disciplinary authority of the charge abetting after consideration of all the evidences available on record, he should be given the benefit of this order in these proceedings. He relies upon the decisions as follows in support: Parminder Jit Singh [2013 (193) ELT 241 (T-Del)] Suraj Prakash [2017 (49) STR 376 (T-Del)] B K Pabri [2017 (358) ELT 819 (T-Del)] Boria Ram [2017 (354) ELT 661 (T-Del)] 3.4 Learned authorized representative reiterates the findings recorded in the impugned order to support the imposition of penalty on two appellants. 4.1 I have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 Additional Director General has in the impugned order recorded the following findings for imposition of penalty under Section 112 (a) of the Customs Act, 1962 on these appellants. 5.30 Penalty on Shri C.S Prasad, Superintendent under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red the goods in question liable for confiscation under Section 111(d) and Section 111(m) of the Act and also rendered himself liable for penalty under Section 112(a) of the Act. 5.31 Imposition of penalty under Section 112 of the Customs Act on Shri Yogendra Singh, Inspector of Customs (Noticee No 13) 5.31.1 Facts, case laws / legal position as discussed in detail in Para 5.14 above (while discussing the defence submission) is applicable and the same is not being reiterated for the sake of brevity. 5.31.2 I find that Shri Yogendra Singh, Inspector of Customs did not open and examined the imported goods covered under Bills of Entry No 4548614 4549963, both dated 26.12.2017 pertaining to M/s. Maxco Traders. He also admitted that prior to the examination of the imported goods, he fed examination report in the system. By improper examination, he did not conform to the provisions of Section 2 (17) and Section 46(2) of the Customs act. Further, I find that in past, he had cleared 7 bills of entry as detailed in para 28.8.9 of the SCN for different importers, wherein fraudulent import had been taken place and which was effected by the same syndicate, which has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crepancy. 20.7.4 Shri C.S. Prasad, when shown invoice No. P-530 dated 18.12.2017 and Packing List No. P-530 dated 18.12.2017 submitted by M/s. Singapore Airlines, wherein total No of pieces imported is 3783 pieces whereas the quantity declared in the Bill of Entry was 2320.Further the invoice number mentioned in the BOE No. 4548614 dated 26.12.2017 is P-387/20.12.2017 to which he stated that the invoice reflecting 'sun glasses and packing materials for sun glasses' was available in the docket and it was found tallying with the invoice details shown in the EDI, Bill of entry as well as the examination report. Based on these he granted OOC for BE No. 4548614 dated 26.12.2017. 20.7.5 Shri C.S. Prasad when shown invoice No. P-530 dated 18.12.2017 and Packing List No. P-530 dated 18.12.2017 submitted by M/s. Singapore Airlines, wherein the description and the quantity of the goods imported are 1. T-Shirts 2381 Pcs, 2. Caps 502 Pcs, 3. Backpack 21 Pcs, 4. Jeans 88 Pcs, 5. Leggings 25 Pcs, 6. Trac Pant 214 Pcs and 7. Socks 252 Pcs. Whereas as per the Bill of Entry, the description of the goods declared are 'Packing materials (Sunglasses)' and 'Sunglasses (U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lable in the docket and it was found tallying with the invoice details shown in the EDI, bill of entry as well as the examination report. Based on these he granted OOC for BE No. 4549963 dated 26.12.2017. 20.7.10 Shri C.S. Prasad when shown the Invoice No. P-525 dated 18.12.2017 and Packing List No. P-525 dated 18.12.2017 submitted by M/s. Singapore Airlines, wherein the description and the quantity of the goods imported were 1. Jeans 539 Pcs, 2. T-Shirts1538 Pcs, 3. Trousers693 Pcs, 4. jakets27 Pcs and 5. Shirts30 Pcs. Whereas as per the Bill of Entry, the description of the goods declared are 'Packing materials (Sunglasses)' and 'Sunglasses (Unbranded)' to which he stated that the invoice produced along with the BE in the docket showed only sun glasses and packing material of sun glasses and the goods mentioned above are not part of the invoice produced for OOC. 20.7.11. Shri C.S Prasad when shown the Invoice No. P-525 dated 18.12.2017 and Packing List No. P-525 dated 18.12.2017 submitted by M/s. Singapore Airlines, wherein the total invoice value declared were HKD 49270/-, whereas the invoice value declared in BOE No. 4548614 dated 26.12.2017 is only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls of entry filed by M/s. Maxco Traders. It appears that the officer has not collected any import dockets for the Bills of entry of the syndicate where OOC was given by him as detailed in above table thereby preventing any attempt for subsequent investigation. 20.7.17 From the foregoing, it is seen that, Shri. C.S.Prasad, Superintendent of Customs, has consistently given OOC for misdeclared Bills of Entry pertaining to particular syndicate without perusing the documents and non application of mind. Further, he has not collected import dockets consistently as mandated for the Bills of entry of the syndicate where OOC was given by him. From the above it appears that the above officer has actively taken part in abetting the smugglers in clearance of undervalued goods without payment of appropriate customs duty. 20.7.18 In view of the above, Shri C S Prasad, Superintendent of Customs has rendered himself liable for penal action under section 112 of the Customs Act, 1962. 20.8. YOGENDRA SINGH, INSPECTOR (EXAMINER) OF CUSTOMS: 20.8.1 Shri Yogendra Singh, Inspector of Customs, the officer responsible for giving Open Examination report pertaining to Bills of Entry v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, and that, he didn't remember the instructions as to what were the exact number of packages instructed to be opened for the examination of the said consignment. 20.8.4. Shri Yogendra Singh when shown the Airway Bill No. 61851348216 issued by M/s. Singapore Airlines Cargo wherein, under the heading Nature and quantity of Goods the description declared is 'Garments' whereas the description declared by the importer in the Bill of Entry i.e. BOE No. 4548614 dated 26.12.2017 is 'Packing materials (Sunglasses)' and 'Sunglasses (Unbranded)', stated that, he has not physically opened and examined the consignment pertaining to the above BOE / AWB and that except the checklist no other document was present in the dockets pertaining to BOE No. 4548614 dated 26.12.2017. No other documents were present in the dockets. 20.8.5. Shri Yogendra Singh when shown the Invoice No. P-530 dated 18.12.2017 and Packing List No. P-530 dated 18.12.2017 pertaining to BOE No. 4548614 dated 26.12.2017 of M/s. Maxco Traders, submitted by M/s. Singapore Airlines, wherein the description and the quantity of the goods imported are 1. TShirts 2381 Pcs, 2. Caps 502 Pcs, 3. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Airway Bills is totally different from the descriptions as declared in the Bills of Entry by the importer. LIST OF BILLS OF ENTRIES OPEN EXAMINEDBY YOGENDRA SINGH (INSPECTOR) From the foregoing, it is crystal clear that, Shri Yogendra Singh, Inspector of Customs, has consistently cleared misdeclared Bills of Entry pertaining to particular syndicate without open examining the consignments which among other things, is his primary duty, thereby abetting the smugglers in clearance of undervalued goods without payment of appropriate customs duty. 20.8.11 In view of the above, Shri Yogendra Singh, Inspector of Customs has rendered himself liable for penal action under section 112 of the Customs Act, 1962. 4.4 Counsel for the Appellant 1 has placed on record the order in original No 03/2022-VIG BWC dated 18.04.2022 passed by the disciplinary authority, whereby Appellant 1, has been exonerated of the charges of abetting in the clearance of the impugned goods held liable for confiscation under Section 111 (d) and 111 (m) of the Customs Act, 1962. By the said order, disciplinary authority has concluded after examining the same set of evidences as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alties. DISCUSSION AND FINDINGS 9. I have gone through all the records of the case carefully, including various submissions of the CO, IO report etc. I have also heard Shri C.S. Prasad, Superintendent presently working in Bengaluru West Commissionerate, Bengaluru, in person and his submissions made before the undersigned. After careful analysis of the entire case records and submissions, I have independently arrived at the following conclusions:- 10.1. As regards to the allegations contained in the Article I that the CO has aided the clearance of imported goods which were grossly mis-declared and CO has abetted the smuggling syndicate in clearance of undervalued goods without payment of applicable Customs Duty, I do not find any evidence or any statements that CO had knowingly involved in abetting the act of mis-declaration or under valuation as alleged in the CM. There is no dispute in this case that the CO has given the out of charge to both the impugned consignments which were found later to be mis-declared in respect of the nature and description of goods, quantity and value of the goods which had adverse revenue implications to the Govt. exchequer. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.3 In this connection, it is also relevant to point out that para 22 of the Annexure-Il-Statement of imputations of misconduct or mis-behaviour in support of Article-I to the impugned Charge Memorandum, it is detailed about the statement of Shri. C.S. Prasad recorded by the Joint Commissioner of Customs, A ACC Commissionerate on 20-05-2019 were given. The following facts inter-alia deposed by the CO, are pertinent in this case and the same are reproduced below:- he has verified the description of the goods shown in the Bill of Entry Nos. 8614 and 4549963 both dated 26-12- 2017 along with the photocopy of voice cum packing list filed bearing number P-387 and P-386 respectively as reflected in the BoEs along with the declarations filed by the importer. The description of the goods in the BOES and in the above said Invoices were sun glassed and packing materials for sunglasses, which tallies with the declaration in the BoE and examination report. Terms of the trade were declared as CIF basis which is inclusive of freight, hence the Airway bill was not verified. On being shown the Invoice and packing list No. P-530 and BOE 4548614 dated 26-12-20 17 regarding the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclaration made in the BoE, he did not insist for legible copy of Invoice and separate packing list. 10.4. Even the department has also stated that the syndicate has produced forged documents to the officers. In this regard it is relevant to point out Para 16 of the SCN issued to the importers and others. In this para department has not accepted Shri Dinesh's retraction letter dated 20.02.2018 and furnished the reasons as to why the same cannot be accepted. Para 16(iv) of the SCN mentions as follows:- Shri Dinesh has further informed that whenever, the Bill of Entry is submitted, the same is scrutinized by customs before giving out of charge. He further confirmed that the documents have been examined. The whole investigation and the case revolve around the mis-declaration of the description of the goods, the value and the quantity. The allegations are that an entire set of forged documents have been presented to the assessing officers. Based on the said documents, the Bills of Entry has been examined/ assessed and out of charge given. This is not the case where factual documents were presented and bogus goods were given out of charge for release of goods. Hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondents under CCS (CCA) Rules have been dropped, the proceedings for imposition of penalty against them under Section 112(a) of Customs Act, 1962 which are based on the same charges and the same evidence, would also not survive. Therefore, there is no infirmity in the impugned order. The Revenue s appeals are accordingly dismissed. The Cross Objections No. 91, 108 and 92 of 2007 filed by the respondents also stand disposed of. B. Suraj Prakash [2017 (49) STR 376 (T-Del)] 5.The disciplinary proceedings initiated against the appellant on the charge of abetting smuggling activities culminated in dropping the charges and exonerating the appellant. This fact is seen to have been brought to the notice of the Tribunal by filing a Misc. application and also furnishing copy of the order. But the Tribunal while passing the impugned Final Order has failed to consider the same. So also the decision relied by the appellant was also not taken note of. The Tribunal being the ultimate fact finding forum, the non-consideration of such vital fact, the omission of which has bearing upon the decision arrived, in our view, is an error apparent on the face of records. We therefore ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich will make the connected goods liable for confiscation. On careful consideration of the evidence on record and submission made by the appellant, I find that there is no sustainable ground to impose penalties under Section 114 on the appellants in the present case. Accordingly, the appeals are allowed by setting aside the impugned order. D. Boria Ram [2017 (354) ELT 661 (T-Del)] 3. As the challenge in the present appeals is only to imposition of penalty on the said three appellants, we take up their cases individually. (i) Appeal No. C/53004/2016 SHRI ASHOK KUMAR INDORA, INSPECTOR On going through the order, we note that penalty stands imposed upon the said appellant on the ground that he has not done proper examination of the consignment inasmuch as, 500 pieces per package were declared whereas, 400 pieces of garments per package were found. Further, the garments in question were of extremely low quality which were visible on a routine examination. For imposing penalty of Rs. 25,000/- on Shri Ashok Kumar Indora, the Commissioner has observed as under :- I find that Shri Ashok Kumar Indora, Inspector whose duty was to check these very parameters did not brin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the penal provisions. As such, in the absence of any evidence to suggest that the appellant had connived with the exporter, we are of the view that non-performance of the duty, by itself, would not call for any penal action on the said appellant. Accordingly, the penalty imposed upon him is set-aside. (ii) Appeal No. C/52976/2016 - SHRI BORIA RAM, SUPERINTENDENT - The Commissioner has imposed penalty on the said Superintendent by observing that he has passed the let export order, which is not a mere formality but has legal requirement to be fulfilled by the Superintendent diligently and the law places a great responsibility on the officer to ensure that the Government revenue is not siphoned by such fraudulent means. For better appreciation of the reasons adopted by the adjudicating authority for imposition of penalty, we reproduce the relevant paragraph from the impugned order:- I find that the above contentions are not acceptable since the noticee was responsible for ensuring that the examination done by the Inspector under his supervision was proper. The Let Export Order was given by him is not a mere formality. It is a legal required to be fulfilled by a Superinten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the same is accordingly, set-aside. 4.6 The crux of the decision at C and D above is that mere failure to discharge the duties assigned in diligent manner cannot be a reason for holding the charge of abetting against the officer of Custom for the purpose of imposing penalty under section1 12 (a) of the Customs Act, 1962. Positive evidence to that effect is required to be placed and charge of abetting needs to be proved in positive manner. I have reproduce the paragraphs of Show Cause Notice and the impugned order in para 4,2. And 4.3 and am unable to find any such positive evidence or even the allegation whereby the charge abetting can be sustained. During course of investigation DRI has recorded the statements of large number of persons importers, CHA etc, but none of the statement even make a wild suggestion to the effect that these officers had connived and abetted in the act of mis-declaration. It is also worth noting that the entire case of misdeclaration is based on the forged documents produced for the clearance of impugned goods as have been recorded by the disciplinary authority in para 10.4 of his order by relying on para 16.1 (iv) of the show cause notice. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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