AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2006 (2) TMI 328
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....of credit and for mis-declaration of the goods for export in each of the shipping bills. The charge against the appellant Mr. A.P. Sales, the Superintendent of Customs is that he verified the export consignment and had sealed the same at factory premises. The charge is of dereliction of duty in as much as that they were required to have checked 100% of examination of the containers. The same charge has been levelled against Mr. V.A. Naik, Inspector. They have been charged under Section 114(i) of the Customs Act which reads as follows :- "Section 114: Penalty for attempt to export goods improperly, etc.- Any person who in relation to any goods, does or omits to do any which act or omission would render such goods liable to confiscation under Section 113, or abets the doing or omission of such an act, shall be liable,- (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to penalty (not exceeding three times the value of the goods as declared by the exporter or the value as determined under this Act), whichever is the greater" 2. Learned Commissioner has not accepted their p....
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....them from this charge by holding that the Revenue has not proved that there are some extraneous consideration for their action. He has clearly noted that there is dereliction of duty. For the purpose of imposing penalty under Section 114(i), the revenue has to prove that the appellants have abetted in the offence or have colluded with the exporters and CHA. This charge has not been made in the show cause notice. The charge is not explicit and the only ground made out is that the appellants ought to have examined the containers fully and discovered discrepancies in the documents vis-a-vis the contents in the containers. Ld Commissioner has clearly held that there is only dereliction of duty. In the circumstances, the charge of the revenue under Section 114 and consequence imposition of the penalties are required to be set aside. Furthermore on this very issue the citations relied by the appellants clearly apply to the facts of the case. In the case of CC, New Delhi v. Hargovind Export [2003 (158) E.L.T. 496], the Tribunal has clearly held that penalty cannot be imposed under Section 114 of the Customs Act on the mere charge of dereliction of duty and the benefit has to be given to t....
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....sioner had abated the act of mis-declaration of the consignment for the purpose of claiming the drawback. The learned Advocate has relied upon the decision in the case of M. Vasi, Supra, wherein the Tribunal has held "Abatement presupposes knowledge of the proposed offence and also presupposes benefit to be derived by the abettors therefrom." Nothing has been brought on record by the Revenue to show the knowledge of and the benefit to, the Respondents. In view of this, we find no reason to interfere with the impugned order in so far as it relates to dropping of the charges against the three Respondents, namely. Shri W.L. Hang Shing, Shri M.I. Khan and Shri R.K. Sharma. All the appeals filed by the Revenue are thus rejected." The Tribunal in the case of CC v. M.I. Khan (supra) on identical facts has dismissed the Revenue appeal by holding in para 12 as follows :- "We have considered the submissions advanced by both the sides. On the question whether the provisions of Section 155 would provide a bar to the initiation of adjudication proceedings against Officers of the Customs as in the present case we find that the Supreme Court decision in Costao Fernandes case (supra) h....
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.... ratio of this judgment would apply to the facts of the case. The Madras High Court in the case of Shri Vasudeva Bank v. UOI [1990 (48) E.L.T. 214] has analysed the phrase "good faith" in detail on this aspect and has given the protection to Govt. servants discharging their statutory duties. The finding recorded in para 20 to 32 as follows : 20. From the above exposition of Governmental liability, emerges the further question as to what constitutes good faith which would protect Government servants in the discharge of their statutory duties. 21. The meaning of the term "good faith" can be gathered from the following Law Lexicons : Roland Burrows : Words and Phrases Judicially defined. "Good faith requires not, indeed logical infallibility but due care and attention." "Good faith", therefore, means absence of knowledge that a preference was intended." Funk & Wagnalls. (New Standard Dictionary of the English Language (1953). "Good faith - the observance of, or the intention to observe, honesty and fair dealing; absence of intention to deceive." 22. Stroud's Judicial Dictionary, 3rd edition (1953). "In go....
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....tion 52; Act IX of 1908, Section 2(7); Act X of 1897, Section 3(20); Bengal Act I of 1899, Section 3(17); Bombay Act I of 1904, Section 3(20), Burma Act I of 1898, Section 2(25) E.B. & A. Act I of 1909, Section 5(21); Madras Act I of 1891, Section 3(11); Punjab Act I of 1898, Section 2(22); U.P. Act I of 1904, Section 4(17). Good Faith. - Honesty, absence of fraud, collusion or deceit. - Nothing is said to be done or believed in good faith which is done or believed without due care and attention. (Penal Code, Section 52). A thing shall be deemed to be done in "good faith" where it is in fact done honestly, whether it is done negligently or not. Act X of 1897 (General Clause) Section 3(20); Eng. Bill of Exchange Act, 1892, Section 90. Nothing shall be deemed to be done in good faith which is not done with due care and attention. Act IX of 1908. (Limitation) Section 2(7). 25. Under the definition of the term in the Limitation Act "nothing shall be deemed to be done in good faith which is not done with due care and attention". This is a stricter definition than the one adopted in Section 3(20) of the General Clauses Act, 1897, under which "....
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....dy of Sundaram Pillai and the Excise Department attached the tobacco. There is nothing illegal or unlawful in the conduct of the Excise Department. It has power under Section 11 to attach the goods, viz., the cheroot tobacco for duty due on other tobacco for which duty had not been paid by Rahamatullah. Section 11 completely gives power to the Government to take the action it did. Therefore the defendant is not liable either for the resultant deterioration or for the lesser price which the tobacco fetched in the Court sale. Point 2 also fails. 29. Point 3 : Both the Courts below have found that first of all the order of the learned Subordinate Judge who disposed of the claim petition did not amount to an adjudication in regard to the Government's right to enforce the realization of the duty on the beedi tobacco by attaching the cheroot tobacco. The learned Subordinate Judge himself in paragraph 7 of his order (Exhibit A-11) states "Whether the pledge will affect the Government's right to claim duty or not is another matter". Again in paragraph 9 he states: 'The next question is whether the petitioner gets any charge by virtue of the attachment effected under Section 11 of ....