2006 (2) TMI 328 - AT - Customs

Penalty against Revenue Officers - Dereliction of duty - CHA for wrongful claim of credit and for mis-declaration of the goods for export in each of the shipping bills - HELD THAT - The charge is not explicit and the only ground made out is that the appellants ought to have examined the containers fully and discovered discrepancies in the documents vis-a-vis the contents in the containers. Ld Commissioner has clearly held that there is only dereliction of duty. In the circumstances, the charge of the revenue u/s 114 and consequence imposition of the penalties are required to be set aside. Furthermore on this very issue the citations relied by the appellants clearly apply to the facts of the case. In the case of CC, New Delhi v. Hargovind Export 2003 (5) TMI 140 - CEGAT, NEW DELHI , the Tribunal has clearly held that penalty cannot be imposed u/s 114 of the Customs Act on the mere charge of dereliction of duty and the benefit has to be given to the officers. The Commissioner s dropping the demands have been upheld by the Tribunal. Thus, the penalty u/s 114 of the Customs Act is not sustainable, as the appellants have not done or have omitted to do any act which act or omission would render such goods liable to confiscation, nor they have abetted in doing or in omission of such act which shall attract penalty provisions or imposing penalty on them. Both the appeals are allowed with consequential relief by setting aside the impugned order in so far as these appellants are concerned.

Issues Involved:
1. Imposition of penalty under Section 114(i) of the Customs Act on the appellants.
2. Dereliction of duty by the appellants.
3. Alleged abetment in the fraudulent export by Globe Fashions (Exim) India, Goa.
4. Applicability of previous judgments and legal precedents.

Issue-wise Detailed Analysis:

1. Imposition of Penalty under Section 114(i) of the Customs Act:
The appellants, who were Superintendent and Inspector of Customs & Central Excise, were penalized with Rs. 25,000/- and Rs. 15,000/- respectively under Section 114(i) of the Customs Act. This section imposes penalties for attempts to export goods improperly. The main allegation was that they failed to perform a 100% examination of the containers, which led to wrongful claims of credit and mis-declaration of goods by Globe Fashions (Exim) India, Goa. The Commissioner did not accept their plea of lack of evidence showing personal involvement and imposed penalties.

2. Dereliction of Duty by the Appellants:
The appellants were charged with dereliction of duty for not conducting a full examination of the export consignment. The Commissioner noted that while there was dereliction of duty, there was no proof of extraneous considerations influencing their actions. The appellants argued that their actions were in good faith and in accordance with the established procedures, and that dereliction of duty alone should not attract penalties under Section 114(i).

3. Alleged Abetment in the Fraudulent Export:
The charge against the appellants included abetment in the fraudulent export activities of Globe Fashions (Exim) India. However, the Commissioner's findings indicated that there was no evidence of abetment or collusion with the exporters and the Custom House Agent (CHA). The appellants contended that the charge of abetment was not explicitly made in the show cause notice, and the Commissioner's conclusion of dereliction of duty did not suffice to impose penalties under Section 114(i).

4. Applicability of Previous Judgments and Legal Precedents:
The appellants relied on several legal precedents, including the Tribunal's ruling in CC, New Delhi v. M.I. Khan and Coasto Fernandes v. State, to argue that penalties under Section 114(i) require proof of abetment or collusion, which was not established in their case. The Tribunal noted that mere dereliction of duty does not justify penalties under Section 114(i). The cited judgments emphasized the need for evidence of knowledge and intent to abet the fraudulent act, which was absent in this case.

Conclusion:
The Tribunal, after careful consideration, concluded that the appellants were not proven to have abetted or colluded in the fraudulent export activities. The charge of dereliction of duty alone was insufficient for imposing penalties under Section 114(i) of the Customs Act. The Tribunal set aside the penalties imposed on the appellants, allowing their appeals with consequential relief. The findings were consistent with previous legal precedents that protect government officials acting in good faith and without evidence of personal gain or abetment in fraudulent activities.

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