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TMI Blog2024 (2) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the failure of order [order-in-original no: 136/2023-24/Commr/NS-I/CAC/JNCH dated 04th September 2023] of the adjudicating authority to sting Shri Sahil Seth and Ms Sayali Lotankar with penalty under section 112 of Customs Act, 1962, is in appeal. The respondent-customs officials claim that the reviewing authority has, in the grounds for preferring appeal, traversed beyond the allegations levelled, and charges framed, in the show cause notice to portray grievous loss to the exchequer for overcoming the findings of the adjudicating authority in their favour that remained effectively uncontested in the appeal. 2. It appears that the consignments had been assessed provisionally, on importer's own declaration of description and value, before being cleared for home consumption. Ongoing investigations had culminated then in eliciting that the goods were, in fact, 'high speed diesel' warranting finalization of assessment attended upon by differential duty. The investigating agency claimed to have unearthed an elaborate conspiracy to mask the identity of 'high speed diesel', with intent to overcome import restrictions and to evade duties of customs by undervaluation, which involved d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 155 of the Customs Act, 1962, however, the same is not followed in the instant case. 107. In view of the above, and as the Investigating Agency could not produce any evidence corroborating the involvement of these officers in the abetment of the clearance of above mentioned consignments, which rendered the consignments liable for confiscation under Section 111(d) of the Customs Act, 1962, penalty under Section 112(a) &(b) of the Customs Act, 1962 cannot be imposed upon them. However, it is made clear that this decision by the undersigned shall not prejudice any action or inquiry initiated by the department against these officers, under the CCS (Conduct) Rules, 1964 or other applicable rules. 108. I also find that disciplinary action has been initiated against the above named officers under the CCS Conduct Rules and it is a settled law that a person should not be punished twice for the same offence. I hold that the same ratio is squarely applicable in the instant case. Hence, I am inclined to accept the contention made by Shri Sahil Seth and Smt. Sayali Lotankar, and hold that the charges levelled against them in the Notice does not sustain.' 3. It is against this conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpose penalty for abetment in acts of omission and commission that rendered the goods liable to confiscation under section 111 of Customs Act, 1962. Learned Counsel for the respondents argued that the issues raised in the notice had been dealt with in the impugned order and that the present appeal is devoid of merit on supporting fact and legal foundation. 6. The adjudicating authority found in favour of the respondents herein, who had been placed on notice only in relation to finalization of provisional assessment and, that too, only in (6 nos.) bills of entry no. 8506996/18.10.2018, 8571103/23.10.2018, 8528745/20.10.2018, 8529061/20.10.2018, 8625593/27.10.2018 and 8982527/24.11.2018 wherein the assessment was closed without taking cognizance of reports indicating that the representative samples had tested as 'high speed diesel' for remedial action, after taking into consideration the practicalities of the Board-induced drive for disposal of provisional assessments and possibility of unintended errors that have had no consequence to the exchequer except by way of having to invoke section 28 of Customs Act, 1962. The adjudicating authority has held that 'abetment', which was the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Act, 1962.' emerging from '35.12.1 As per the assessment practice, these goods were assessed provisionally under second check appraisement by Customs. However, even on receipt of the report from DyCC stating that the above goods conformed to the parameters of HSD, Smt. Sayali Lotankar, Appraiser and Shri Sahil Seth, Deputy Commissioner assessed the goods finally without initiating the remedial measures i.e. issuance of scn in respect of offending goods and adjudication thereof. Further, it appears that Test Report numbers in resepct of three of these consignments were also incorrectly fed in the ICES systems. On verification it appears tht these Test Report numbers pertained to altogether different consignments which had nothing to do with the consignments of goods imported by the syndicate.' and '35.12.2 Shri Sahil Seth, Deputy Commissioner who is the "proper officer" under Section 18 of the Customs Act, 1962 for final assessment of the goods has admitted that he had not gone through any of the impugned six Test Reports before finalizing the provisional assessments in the system. He has also confirmed that he had never called for the original test reports to verify th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arration of the show cause notice, was overlooked by the adjudicating authority even while agreeing with correctness of the proposition that the goods belonging to the 'syndicate', and assessed by the respondent-officials, were liable for confiscation under section 111 of Customs Act, 1962. We have perused the relevant portions of the show cause notice comprising the depositions of Mr Kishan Pote and Mr Manish Thakkar, who did admit to some payment having been made over for each container to different levels in the customs hierarchy, but these are general allegations which do not name the respondent-officials as recipients. The other statements, too, are as deficient in specifics though it does appear that payment, if at all, was not made for finalization of provisional assessment. The appeal of the Principal Commissioner of Customs deputed for the purpose by the review committee is glaringly deficient in any factual submission that links the general averments in the depositions to the respondent-officials. The ground now pleaded does not add to the available records but seeks to widen the charge framed in the notice issued to the respondent-individuals. 10. That the adjudication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scation or, for that matter, to clearance of imported goods. It is not in dispute that the impugned goods cleared in October 2018 were taken up for assessment in December 2018 and confiscation was to be invoked for misdeclaration and not either for clearance of goods or for erroneous finalization of provisional assessment. It was also suggested that the show cause notice issuing authority was peeved at having been deprived of option to impose redemption fine in lieu of confiscation. We fail to see such consequence upon finalization of provisional assessment. Fine in lieu of redemption arises from confiscation of goods that are available and fine is quid pro quo for release from confiscatory vestment with the Central Government. To anyone with peripheral familiarity of customs law and procedure, it should be apparent that cavil over non-availability of goods for confiscation, and redemption, at stage of finalization of provisional assessment is akin to crying for the moon as the law does not envisage retention of goods provisionally assessed. We do believe that the notice issuing authority would not have been callow enough to confuse section 110A of Customs Act, 1962, operating to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 962 warranting remedial action. We find the inconsequential reference thereto is not reason enough for us to embark upon evaluation of a relatively obscure, and little attended, provision of Customs Act, 1962 as the dropping of proceedings remains unalterably in place. 14. So it is with the finding on 'double jeopardy' in the impugned order. It is settled law that proceedings under different laws enacted for different purposes are no grounds for preferring one over the other. The adjudicating authority has not decided on the outcome on such preferential progression and has not concluded therefrom that only this would suffice for dropping of proceedings. As we have premised in relation to plea for statutory protection, the adjudicating authority was obliged to dispose of this plea too. That such disposal may have evinced his sympathy over the initiation of multiple proceedings, or even his conviction that they should not have been, does not alter the lack of any effect on the findings on merit that remain unimpeached for reason of absence of valid challenge in appeal and our own observations supra on the deficiencies in the notice issued to respondent-officials. That the impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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