COMMISSIONER OF CUSTOMS Vs. HARGOVIND EXPORT

JUDGEMENT

(1.) In these seven appeals preferred by the Revenue, the issue involved is whether the penalties under Section 114 of the Customs Act are imposable on the Departmental Officers, namely, Shri W.L. Hang Shing, Assistant Collector, Shri M.I. Khan, Superintendent and Shri R.K. Sharma, Inspector.

(2.) We heard Shri V. Lakshmikumaran, learned Advocate of Shri Hang Shing, Shri K.K. Anand, learned Advocate 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 and 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 Commissioner to apply to the CEGAT, New Delhi for correct determination of the above points and pass such order as deemed fit." Further, no averment has been made in respect of other respondents. We, therefore, hold that in the absence of any Review Order passed by the Board in exercise of powers vested under Section 129D(1) of the Customs Act, the appeals against M/s. Hargovind Export, Shri Kuldip Singh, Shri Akhilesh Kala and Shri Ashok Behl are not maintainable and are accordingly dismissed.

(3.) The learned SDR submitted that when the Officers of the Directorate of Revenue Intelligence examined the 130 packages covered by Shipping Bill Nos. 094823, 094825 and 094829, dated 29 -5 -90, filed by M/s. Hargovind Exports for spectacle frames, they found that all the packages contained saw dust, wooden chips, stones, etc.; that the goods covered by these shipping bills for 50 packages each already been examined by Customs and "let export" Orders had been given; that out of these goods, 20 packages pertaining to Shipping Bill No. 094823 had already been exported; that a similar consignment said to contain spectacle frames had also been exported under Shipping Bill No. 094827, dated 29 -5 -90; that the investigation revealed that the exporter had acted in a fraudulent manner in connivance with the Customs Officers and some other persons and misdeclared the goods to obtain drawback. The learned SDR, further, submitted that the exporter had admitted that no spectacle frames were put in any 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 of the consignment or not; that considering the substantial claim for drawback it was his duty, as a supervisory officer, to examine carefully the consignment by physical examination of the goods for satisfying about the description and value of the goods; that Shri Wilson Hang Sheing has countersigned the examination report; that considering all the evidences on record duly corroborated by the statement of the Inspector and other persons, it is apparent that some well considered rearrangement had been made with the connivance of the Respondents for not raising any objection and pass the fake goods as shipment of spectacle frames. The learned SDR, therefore, contended that the three Officers had abetted the exporter in misdeclaring the contents and value of the goods being shipped under the claim of drawback; that provisions of Section 114 of the Customs Act are clearly applicable as giving a false examination report on the Shipping Bills with a view to give unwarranted benefit of drawback to the exporter is nothing but abatement; that the Commissioner has erred in accepting the contention of the Officers that under Section 155(2) of the Act there is a bar for proceeding against them; that Section 155(2) has to be read with Section 114; that there must be compliance or intended compliance with the provisions of the Act, however, honest the conduct be otherwise, so as to qualify to be an act done in good faith in pursuance of the Customs Act or the Rules and Regulations made thereunder; that accordingly the penalties are imposable on these Officers under Section 114 of the Customs Act.