A. SRINIVASAN Vs. COMMISSIONER OF CUSTOMS, COCHIN

JUDGEMENT

(1.) THE appellant has challenged the imposition of penalty of Rs. 2,00,000/- in terms of Section 114(i) of the Customs Act. The appellant was working as Superintendent of Central Excise in Viralimalai Taluk, Trichy Commissionerate. The exporters viz. M/s. Sweety International Pvt. Ltd., Mumbai, were attempting to export garments in the grab of export/non -export claiming the same to be as ladies garments. The case was booked against the said Sweety International Pvt. Ltd. along with the CHA viz. M/s. Air Travel Enterprises. After detailed examination and conclusion of the proceedings, the goods were declared more than 3.21 crores and were ordered to be confiscated and released on RF of Rs. 25 lakhs. M/s. Sweety International was imposed with a penalty of Rs. 30 lakhs and the CHA viz. M/s. Air Travel Enterprises with penalty of Rs. 2 lakhs with separate penalties on individuals including the appellant on the ground that he has colluded with the exporters and thereby brought loss to the Revenue. The appellants contention was that the signatures which were on the Shipping Bills, certifying the goods, was not his. He was not the concerned Superintendent of Central Excise for that range and he has not affixed his signature. He denied having actively colluded in the fraudulent export/attempt to export rendering himself liable for penalty under Section 114(i) of the Customs Act. However, his plea has been rejected by the Commissioner on the ground that the signatures on shipping documents are his only. However, the Commissioner has not referred to the main defence taken by the appellant that he was not the Superintendent of the said range and the place where he was working was more than 110 Kms. away and he absolutely have no chance or cause to deal with this case or with the appellants party. The Commissioner has not rendered any findings on the plea but merely has given a finding rejecting his plea for cross -examining 11 individuals and also holding that the judgments cited by him are not applicable to the facts of the case. He has merely held that he had actively abetted and colluded in the fraudulent export/attempt to export, thereby rendering himself liable for penalty under Section 114(i) of the Customs Act.

(2.) THE learned Counsel submits that the Revenue has to prove with evidence the collusion of the appellant with the exporter. He points out that there is no statement of any person including the exporter or the CHA involving the appellant. The mere premise was his signatures said to have been done by him on the Shipping Bills. He submits that there was no cause for him to sign the Shipping Bills as these shipping Bills were never produced in his Range and there was separate Range Superintendent for the place where the exports took place. The evidence against him is not sufficient to uphold the charge of collusion and abatement in terms of Section 114

(3.) THE learned JDR defended the order and submits that the findings rendered against the appellant should be upheld. On a careful consideration, we notice that the Commissioner has not adverted to the defence taken by the appellant that he was not the concerned Superintendent for the Range in which the Shipping Bills were filed. He has clearly mentioned that he was working in a different Range and it was more than 110 Kms. away. The mere fact of some signatures on the Shipping Bills cannot be a ground to hold that the appellant was the Superintendent who has affixed the signature. The Revenue relied on the statement of the exporters alleging that the appellant had stuffed the container. But, the plea for cross-examining the said persons has not been granted by the Commissioner thereby, there is a clear violation of Principles of Natural Justice. There is no other evidence on record to show that any of the Officers of the Department were examined to prove that the appellant had signed the Shipping Bills despite he working in a different Range. The Commissioner ought to have addressed this question seriously. It is difficult to understand as to how a Superintendent of one Range could have performed the duty of another Range without any authority being given to him. This ground is sufficient to set aside the allegation against the appellant. Furthermore, the appeal of the CHA i.e. M/s. Air Travel Enterprises India Ltd. has been allowed by Final Order No. 1996/2006, dated 29-11-2006 by holding that the Revenue has failed to establish the case with evidence. The findings recorded in paras 2 to 4 is reproduced herein below.