2015 (8) TMI 1282 - AT - Customs

Maintainability - Whether there is a mistake on the face of records - Appellant contended that Tribunal failed to consider the vital fact and also the decision relied by the appellant which amounts to an error apparent on the face of records - Held that - the disciplinary proceedings initiated against the appellant on the charge of abetting smuggling activities culminated in dropping the charges and exonerating the appellant. This fact is seen to have been brought to the notice of the Tribunal by filing a Misc. application and also furnishing copy of the order. But the Tribunal while passing the impugned Final Order has failed to consider the same. So also the decision relied by the appellant was also not taken note of. The Tribunal being the ultimate fact finding forum the non-consideration of such vital fact the omission of which has bearing upon the decision arrived in our view is an error apparent on the face of records. Therefore we hold that there is an error which calls for exercise of jurisdiction of the Tribunal under Section 35C(2) for rectification. Imposition of penalty - Section 112 of the Customs Act 1962 - Appellant submitted that on similar facts this Tribunal in Commissioner of Customs Amritsar v. Parminder Jit Singh 2013 (7) TMI 377 - CESTAT NEW DELHI has held that when disciplinary proceedings under CCS (CCA) Rules 1995 are dropped the imposition of penalty under Section 112 on same charge and same evidence cannot survive - Held that - the impugned order to extent of imposing penalty of 1, 00, 000/- upon the appellant under Section 112. Therefore the Final Order as to the extent of imposing penalty upon the appellant is recalled and set aside. - Decided in favour of appellant

Summary

Issues:
Imposition of penalty under Section 112 of the Customs Act, 1962.

Analysis:

Issue 1: Imposition of Penalty
The appellant filed a ROM application alleging an error in the Final Order dismissing the appeal and imposing a penalty under Section 112 of the Customs Act, 1962. The appellant, a former Customs Officer, was accused of fraudulent activities. Despite being exonerated in departmental proceedings, the Tribunal failed to consider this vital fact and a relevant decision. The Tribunal's non-consideration of these crucial aspects constitutes an error apparent on the face of records. The Tribunal has the jurisdiction under Section 35C(2) to rectify such errors.

Issue 2: Consideration of Departmental Proceedings
The appellant argued that the Tribunal overlooked the exoneration in departmental proceedings and a precedent where dropping charges in disciplinary proceedings led to the unsustainability of imposing penalties under the Customs Act. Citing Commissioner of Customs, Amritsar v. Parminder Jit Singh, the appellant contended that the imposition of a penalty on the same charge and evidence after dropping disciplinary charges is untenable. Therefore, the imposition of a penalty of Rs. 1,00,000 on the appellant was deemed unsustainable, leading to the recall and setting aside of the Final Order.

Conclusion:
The Tribunal, in its judgment, acknowledged the error in not considering the exoneration in departmental proceedings and the relevant legal precedent. Consequently, the imposition of the penalty under Section 112 of the Customs Act was deemed unsustainable, leading to the allowance of the appellant's appeal and the recall of the Final Order imposing the penalty.