1999 (1) TMI 48 - CGOVT - Customs

Summary

Issues Involved:
1. Whether the respondent gave an "out of charge" order without verifying the packages.
2. Whether the respondent improperly handled the BDF after detection by the Jamadar/Havaldar.
3. Whether the respondent instructed the auditor to pre-audit the BDF and duty receipt with a back date.
4. Whether the respondent failed in supervising the BO's work and allowed changes in the BDF without proper consultation.

Detailed Analysis:

1. Out of Charge Order Without Verification:
The respondent signed the examination report and gave an "out of charge" order for the two packages covered in BDF No. 4134, dated 26-4-1994, without physically examining the goods. This point is undisputed and answered in the positive.

2. Handling of BDF After Detection:
The respondent received the BDF from the AC, UBC on 27-4-1994 for enquiry with the BO regarding the lapse. Instead of reporting back the results of his enquiry, he allowed the goods to be cleared by charging duty, altering the original declaration of the contents from "old, used wearing apparels, used blanket, used kitchen-ware" to "Two National Air-conditioners." This act was confirmed by the respondent's statement dated 12-5-1994, making the argument of the learned Advocate factually incorrect and untenable.

3. Pre-audit Instructions:
Shri P.K. Gogry, the auditor, deposed that he was instructed by the respondent to pre-audit the BDF and the duty receipt with a back date. This statement was not retracted or denied by the respondent, indicating that the respondent instructed the auditor to ante date his signature. The Order-in-Original also shows that the BO corrected the BDF with the help of the respondent. Therefore, this point goes against the respondent.

4. Failure in Supervisory Duties:
The respondent failed to supervise the BO's work by allowing changes in the BDF without consulting the AC, UBC. He did not bother to examine the goods on 26-4-1994, even though he was present in the Baggage Hall. The respondent's actions after detection, including allowing duty payment by ante dated entries, indicate a failure in his supervisory duties and a possible interest in clearing the air-conditioners as used personal effects.

Respondent's Defense:
The respondent claimed that he gave the out of charge order in good faith due to workload and supervision of five officers. He argued that the AC instructed him to recover the duty, not to enquire or adjudicate the case. He also stated that there was no evidence of his involvement in the mis-declaration or aiding the BO. However, these points were found to be misleading or factually incorrect upon analysis.

Appellate Authority's Findings:
The appellate authority's decision to exonerate the respondent was not based on sound grounds. The records indicated that the passenger did not mis-declare the goods and had given money to the clearing agent for paying duty. The clearing agent was penalized, but the respondent's actions were not justified.

Section 112(a) Application:
Under Section 112(a) of the Customs Act, 1962, the respondent's actions of omission and commission, including failing to examine the goods and allowing clearance after duty payment with ante dated entries, rendered him liable for penalty. His subsequent actions indicated an interest in clearing the air-conditioners as used personal effects, further supporting the imposition of the penalty.

Conclusion:
The Government held that the respondent was liable for penalty under Section 112(a) for his omissions and commissions. The order of the appellate authority was not tenable, and the Revision Application succeeded. It was ordered accordingly.