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TMI Blog2003 (5) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... te for Shri M.I. Khan and Shri J.P. Kaushik, learned Advocate and Shri V. Valte, learned SDR for Revenue. It transpired that though the Revenue has filed seven appeals against the impugned Order No. 52/KK/96, dated 29-11-96 passed by the Commissioner, the Central Board of Excise & Customs has reviewed the same under Section 129D(1) of the Customs Act only in respect of the three Departmental Officers as no penalty under the Customs Act was imposed on them. We observe that it is specifically mentioned in the Review Order No. 222-R/97, dated 20-11-1997 that. "The Commissioner has erred in dropping the proceedings against the Departmental Officers and the order is not proper and legal on this count" and the Board has, therefore, directed the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the consignments; that this fact has been duly corroborated by the physical examination undertaken of the 130 packages which had still not been shipped though for which 'let export' order had been passed by the Customs Officers; that Shri R.K. Sharma had wrongly claimed in his statement that when he examined two packages, these were found to contain very huge, thick and crude black spectacle frames; that he colluded with the exporter in giving a false examination report; that Shri M.I. Khan had signed the examination report; that he cannot pass on the responsibility or claim that he had not physically seen the goods or contents of the packages were not opened in his presence and that he was not aware that the samples shown were a part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made thereunder; that accordingly the penalties are imposable on these Officers under Section 114 of the Customs Act. 4. Countering the arguments, Shri Lakshmikumaran, learned Advocate, submitted that it has been mentioned in the show cause notice that Shri R.K. Sharma in his statement had stated that at the time of examination it was told by Shri M.I. Khan that the exporter was a friend of Shri W.L. Hang Shing; that on the basis of such a statement Appellant Assistant Commissioner cannot be saddled with the penalty under Section 114 of the Customs Act since a number of persons may claim to be the friend of persons in authority; that Shri Hang Shing, in his statement, has clearly deposed that he had never told Shri M.I. Khan to facilitate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement, dated 17-8-1990 that he did not know them personally; that there is no evidence on record to show that these Officers were offered or promised any consideration for conniving with any activity alleged in the show cause notice; that knowledge by the person is a must before any penalty can be imposed on him under Section 114 of the Customs Act; that it has been held by the Tribunal in the case of Commissioner of Customs, Mumbai v. M. Vasi, 2003 (151) E.L.T. 312 (Tri. - Mumbai) = 2003 (54) RLT 222 (CEGAT) that "Abatement presupposes knowledge of the proposed offence and also presupposes benefit to be derived by the abettors therefrom.....In the absence of conscious knowledge, penalty on charge of aiding and abetting would not sustain." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or proof of consideration having been demanded by the Respondents or paid or supposed to be paid by the exporter. We also observe that this aspect has also been mentioned in the impugned order. The exporter, Shri Kuldeep Singh, has clearly denied knowing any of the Respondents personally. In his statement, he has only mentioned that one Shri Akhilesh Kala knew the Assistant Collector. But Shri Akhilesh Kala has not been traced out during investigation nor he has participated in the adjudication proceedings. Further again some allegation is that Shri Akhilesh Kala had told Shri Kuldeep Singh that he (Akhilesh Kala) knew the Assistant Collector which is not sufficient material to come to the conclusion that the Assistant Commissioner had abat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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