TaxTMI 
TaxTMI 
2016 (5) TMI 1063
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....,000/- upon Sh. Dinabandhu Nayak under Sec 114 of the Customs Act 1962. 2. Sh. B.N. Pal (Advocate) appearing on behalf of the appellant argued than an export consignment under S/B No. 5159907 dt 27/5/04 was intercepted on the basis of a tip off and only 55,750 pcs of old & used non-export worthy readymade garments were found in 816 cartoons as against 2,14,400 pcs declared in 1216 cartoon in the shipping bill. That appellant has only supervised the factory stuffing of the containers for sometime which were examined by Sh. Rabindra Nath Mistri, Inspector, who was required to examine & stuff cartoons thoroughly. It was the case of the appellant that penalty in the show cause notice was proposed under Sec 112 (a) but has been imposed by Com....
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....5 & 14/2/2007 to argue that Adjudicating authority has not given due consideration to the facts & duties of the appellant. That appellant was also penalised in departmental proceedings. 3. Sh. S. Mukherjee Supdt (AR) appearing on behalf of the Revenue argued that appellant did not carry out the stuffing & examination of the containers & was found negligent. It was thus his case that appellant was correctly visited with penalty under Sec 114 of the CA 1962. That it is a settled legal position that mention of wrong Section in the show cause notice does not vitiates the proceeding if penalty was imposed correctly under Sec 114 of the CA 1962. Learned AR relied upon the case law Zaki Anwar Vs CC, New Delhi [2006 (197) ELT 510 (Tri.-Del)] whe....
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....n the instant case. By not giving any such opportunity or following corrective procedure, Adjudicating authority has gone beyond the scope of show cause notice which is not permissible as per case laws relied upon by the appellant, which also include ratios laid down by Apex Court. 6. So for as issue at Para-4 (ii) above is concerned nowhere in the records it is coming out that appellant was required to supervise 100% stuffing & examination of the cartoons in the containers. Even if there was some negligence on the part of the appellant the same has been taken care of by departmental proceedings and no penalty could be imposed under the Customs Act 1962 as per the relied upon case laws. There is also no evidence on record that appellant ....
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....ts would throw a serious doubt about discharging their duty properly but it is not sufficient to penalise them under Section 114 of the Customs Act. The Commissioner has given his findings that there is no evidence on record to show that any act or omission on the part of the Respondents has rendered the goods liable to confiscation under Section 113 of the Customs Act. In the appeal filed by the Revenue, it has not been highlighted that there is any material to show that the Respondents had connived with the exporter in misdeclaring the goods. What has been mentioned in the Memorandum of Appeal, filed by the Revenue, only highlights the derelication of the duty by the Respondents which is not sufficient for imposing penalty under Section 1....