COMMISSIONER OF CUSTOMS, BANGALORE Vs. M. NAUSHAD

JUDGEMENT

(1.) THE revenue is aggrieved with the Order -in -Original No. 30/2004 -Cus. Adjn. (Commr.), dated 31 -8 -2004 by which he has dropped the proceedings against three appraisals and one inspector of ICD, Bangalore. These officers of the Customs Department had also been charged in the show cause notice for having abetted in the offence of mis -declaration of the quantities of verified tiles imported under the impugned bills of entry. However, the Commissioner after summing up the records had clearly noted that the Revenue has not produced any evidence of abetting under Section 112(a) of the Customs Act, which clearly lays down that the person to be charged under Section 112(a) should have been involved deliberately in the act of abetting. There is no evidence to prove abetment of the officers, which is relied in the show cause notice. Therefore, in the absence of evidence of abetting, the Commissioner has noted that the offences have not been brought out on them for levy of Section 114A of the Customs Act. The Section 112 reads as follows : in terms of the above section persons who have dealt with the goods should have done or abetting to do any act which act or omission would render such goods for confiscation under Section 111 or abets the doing or omission of such an act. The Section 112 (b) has noted above also deals with requisition and possession of the goods which are liable for confiscation. Charges made against the officers in the show cause notice are under Section 112(a) of the Act. The Commissioner has recorded the findings in paras 198 to 211 as follows. 198. The next issue for consideration is the proposal in the show cause notice for imposition of penalty under Section 112(a) of the Customs Act, 1962 on the charge of abetment with the importer and the CHA on the following officers, namely, Shri M. Naushad, Shri T.M. Gopinath, and Shri Amit Choudhary, Appraisers at ICD, Bangalore and Shri Dharan Kumar, Inspector, ICD, Bangalore. 199. Specifically, the charge against Shri M. Naushad, Appraiser is that in respect of Bill of Entry No. 2416, dated 5 -4 -2003, which was assessed by him, he was aware that there was discrepancy in the dimensions of the tiles declared in the Bill of Entry, invoice and the Packing List initially and the actual dimensions which was noticed at the time of examination. It is further alleged that he had assessed the said Bill of Entry initially on 5 -4 -2003 when the original invoice and the packing list were submitted which described the dimension of the tiles as 400 x 400 x 10 mm and 600 x 600 x 10 mm. Subsequently on account of amendment to the Bill of Entry made on 7 -4 -2003, wherein the description was changed from Ceramic Tiles to Vitrified Ceramic tiles, the goods were sent for examination first and as per the Examination Report, the dimension of the tiles was 500 x 500 x 10 mm and 600 x 600 x 10 mm and the Invoice and the Packing List were substituted. Shri M. Naushad, Appraiser failed to notice the change in the dimension of the tiles and the substitution of the documents. Further, he failed to: cross check the arithmetical calculation on the quantity declared in the Bill of Entry with the packing list. Had he taken care to see these things, the evasion of duty by the importer could have been detected earlier. In view of this, he has been charged with abetting with the Importer and the CHA in the evasion of duty rendering himself liable to penalty under Section 112 (a) of the Customs Act, 1962. 200. The charges against Shri T. M. Gopinath, Appraiser and Shri Dharan Kumar, Inspector, ICD are that when the Bill of Entry No. 2416, dated 5 -4 -2003 was sent for examination on 8 -4 -2003, they had noticed the discrepancy in the dimensions of the tiles. Whereas, the invoice and the packing list showed dimensions to be 400 x 400 x 10 mm and 600 x 600 x 10 mm, on actual examination, they found the dimensions to be 500 x 500 x 10 mm and 600 x 600 x 10 mm. This discrepancy was not recorded in their Examination Report on 8 -4 -2003 and the Bill of Entry and the connected documents were returned to the importer. The importer then replaced the original invoice and the Packing List with the fabricated ones showing the correct dimensions as observed during the examination and re -submitted the Bill of Entry for recording the Examination Report. The Inspector and the Appraiser in charge of the Examination recorded the examination report without highlighting the fact that there was a discrepancy in the documents submitted and also without noticing that the original documents have been substituted. It has been charged that they were aware of the substitution of the Invoice and the Packing List and despite such knowledge, they gave a factually incorrect report, thereby abetting the commission of the offence by the importer and the CHA.

(2.) THESE findings are challenged by the Revenue on a simple ground that there was sufficient evidence available for penalising these officers. Except for making the statement in grounds of appeal, the Revenue has not produced any statements of the officers or of the importer or the CHA implicating the officers in the Act of abetment. Therefore, the learned Counsels strenuously argued and contended that the finding given by the Commissioner is correct in law. It is submitted that the officers failure to perform their duty of examining the documents would at best only amount to dereliction of duty and would not be an offence under Section 112(a) for penalising them under Section 114A. A lapse on the part of the officers in scrutinising the documents cannot be considered as an act of abetment.

(3.) THE learned Counsels rely on the judgment of this Bench rendered in the case of A.P. Sales v. C.C., Hyderabad - 2006 (198) E.L.T. 309 (Tri. -Bang.) wherein this Bench after considering the judgments of Apex Court, High Court of Madras and Tribunal have clearly laid down that if there is any dereliction of duty that would be a cause for the Government to proceed under the CCR Rules. It has been laid down in the light of the higher courts judgments that for charging under Section 112(a) and penalising under Section 114A, the officers involvement in the offence and abetment should be established. Their collusion with importer and CHA has to be brought out in the show cause notice explicitly. It is their submission that all the ingredients of the Section have not been complied with and in absence of any evidence, the dropping of charges on these officers is justified and requires to be upheld.