A.P. SALES Vs. COMMISSIONER OF CUSTOMS, HYDERABAD

JUDGEMENT

(1.) BOTH these appeals arise from common OIO 19/05 Adjn Cus., dated 4 -7 -2005. The appellants were Superintendent and Inspector of Customs & Central Excise Vascodama Range. They have been imposed with penalty of Rs. 25,000/ - and Rs. 15,000/ - in terms of Section 114(i) of Customs Act. The main person against whom the demands have been confirmed is Globe Fashions (Exim) India, Goa. During the period, the said party filed shipping bills for export of the said goods under DEPB Scheme through their Custom House Agent H.B. Cargo, Services Hyderabad. The appellants were working as Superintendent and Inspector in the said inland container depot. The case was booked against the said Globe Fashions Exim India Ltd. and the CHA for wrongful claim 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, -

(2.) LEARNED Commissioner has not accepted their plea of lack of evidence to show their personal involvement in the matter. They had contended that they have acted in bona fide belief and have not abetted in any offence or have acted in such a manner as to make the goods liable for confiscation. They had performed their duties in a bona fide belief and the charge against them under Section 114 is not sustainable. They relied on the Tribunal ruling rendered in the case of CC, New Delhi v. M.I. Khan [2000 (120) E.L.T. 542 (T)] and that of Coasto Fernandes v. State [1996 (82) E.L.T. 433 (S.C.)], Assistant Collector v. Ramdev Tobacco Co. [1991 (51) E.L.T. 631 (S.C.)], Shri Vasudeva Bank v. UOI [1990 (48) E.L.T. 214]. However, the Commissioner even after due recording of these judgments has not examined the issue in detail and has merely proceeded to impose penalties. However, he has clearly noted in conclusion that : On the contrary as the facts are found to be different and as there is dereliction of duty even though it is not proved that there are some extraneous considerations for their actions I impose penalty on both of them under Section 114(i) of the Customs Act 1962. Learned Counsel submits that both the officers of the Customs Department had followed the procedures laid down for examination of the goods. They are not required to make 100% examination and they had done their best in checking the goods. They did not find any initial error. They contend that the Commissioner has clearly noted that there was only dereliction of duty. For which they can be proceeded under the CCS Rules and they cannot be charged for imposition of penalty under Section 114(i) as they have neither connived nor indulged in the fraudulent act. They contend that the judgments relied clearly apply to the facts of the case. Hence penalty is required to be set aside.

(3.) LEARNED counsel submits that the Inspector Mr. A.V. Naik has already deposited penalty and prays for allowing the appeal with consequential relief.