TaxTMI 
TaxTMI 
2022 (11) TMI 1237
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....f imported goods vide Annexure-I & II (at ACC, Bangalore) (Para 24.1.4 of SCN)- wherein total differential duty 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 import....
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....n by the officials of DRI. It was also ascertained that two more shipments under Bills of Entry No. 4548614 & 4549963 both dated 26.12.2017 pertaining 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 sa....
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....g for the appellant 1 learned counsel submits that_ • As a consequence of the show cause notice issued by the DRI, departmental proceedings were 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 impugn....
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....visions of the Customs Act which he failed to do so. He also failed to collect the docket containing import documents. 5.30.3 Thus, he has aided and abetted the offence of unscrupulous elements and rendered 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 fin....
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....y he had given out of charge to 279 bills of entry and could not closely peruse all the connected documents. Due to paucity of time he could not pay attention to the description indicated in the AWB. Hence, he did not notice the discrepancy. 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....
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....ed in the Bill of Entry was 2320. Further the invoice number mentioned in the BOE No. 4549963 dated 26.12.2017 was P- 386/20.12.2017, to which he stated that the invoice reflecting 'sun glasses and packing materials for sun glasses' were 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. 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....
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.... smuggling of goods that were misdeclared in terms of description, Value & Quantity. 20.7.16 It is also pertinent to note that the officer has not collected the import docket containing all the import documents as mandated while giving OOC to the consignments under Bills 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 rendere....
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.... packing list and Airway bill. 20.8.3 Shri Yogendra Singh, when shown the Bills of Entry bearing No. 4548614 and 4549963 both dated 26.12.2017 pertaining to M/s. Maxco Traders, confirmed that he was the officer to whom the said bills of entry were marked for open examination in the ICES system, 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 whe....
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....dged that the items listed in the Annexure to the Mahazar is totally contradicting with the examination report given by him in both the Bills of Entry. 20.8.9 Apart from the above two Bills of Entry, Shri Yogendra Singh has given Open Examination reports for five more bills of entries wherein the description in 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 disciplin....
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....O vide letter C.No. II/10.A/18/2021-VIG BWC dated 25-03-2022 and informed him to furnish his reply, if any. In reply, Shri. C S Prasad, Superintendent vide letter dated 29- 03-2022, has stated that the Second Stage Advice rendered by DGOV, Hyderabad appears to be in agreement with the stand taken him and he may be awarded a least of the Minor Penalties. 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-d....
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....are mis-declared for evasion of taxes. Further it is seen that the CO has checked the documents i.e. Bill of Entry, Examination report issued by the Inspector, Packing list, invoices which tallied with the Bill of Entry. He relied on the examination report given by the Inspector which categorically stated that the goods were examined and found in order. 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....
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....e BOE and Invoice produced to me no discrepancy was noticed and hence OOC was issued. Further elaborating the reasons for non verification of genuineness of the invoice/packing list and the declaration made in the bill of entry and been granted OOC without propel' verification "he stated that due to rush hour and also due to the fact that the examination report tallied with the declaration 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 ....
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.... Kewal Singh, Inspector and Shri R.K. Sharma - Inspector (now Superintendent) have been dropped vide order-in-original dated 4-4-2006 by the Commissioner, the proceedings against Shri Rajan Choudhary, Assistant Commissioner (now Deputy Commissioner) have been dropped vide memorandum No. C-1401138/98-Ad. V, dated 17-6-2009 of the Government of India. In view of this, when the disciplinary proceedings against the 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 f....
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....Custom Officer by itself cannot bring in penal consequence in terms of the said section. Such negligence or failure may attract departmental proceedings for violation of the service rules. For Customs Act, irrespective of the fact whether the person is an officer of Customs or any other person, penalty for an offence of abetting can be imposed only on establishing a positive act on abetment of another person's act or omission which 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....
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....e 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 UOI v. J. Ahmed - AIR 1979 SC 1022, 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. (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 reas....
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....ind. There is no statement of either person to show that the Superintendent was aware of the discrepancy in the consignment. As such, in the absence of any evidence to reflect upon the said appellant's role to play in the alleged misdeclaration and by following the Tribunal decision in the case of Khem Singh v. CC, Kandla - 2014 (307) E.L.T. 718 (Tri. - Ahmd.), we hold that imposition of penalty upon the said appellant is not justified 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 - ....