2012 (10) TMI 872 - AT - Customs

Penalty - abetting illegal import alleged that appellant was aware that the consignments were imported in the name of M/s. Kalinga Trading Co. showing one Shri Prakash Surendra Tiwari as the proprietor, even though Shri Jainarayan I. Rajbhar was the actual proprietor Held that - In spite of coming to know this fact, he did not inform the Customs authorities and got the bills of entry assessed as ABC dry chemical powder for fire extinguishers - he knew that one Shri Ajay R. Bhan was attempting to arrange certain manipulations with reference to the chemical test report of the goods under importation, but he remained silent and did not inform the Customs of the same - acts of omission and commission which rendered the goods liable to confiscation under Section 111(d) & (m) of the Customs Act, 1962, Shri Brajesh Tiwari is liable to penalty under Section 112 of the Customs Act Penalty against Shri Kishun Ram, Assistant Chemical Examiner - There is no evidence on record to show that Shri Kishun Ram undertook any activity, the commission or omission of which rendered the goods liable to confiscation. In the absence of such a positive evidence, the benefit of doubt has to be given to him and therefore, a penalty under the Customs Act, 1962 cannot be imposed on him. We should hasten to mention here that this finding of the Tribunal does not in any way affect the departmental disciplinary proceedings initiated against Shri Kishun Ram for dereliction of duty and that should be decided on the basis of the evidence available on record independently of the findings given herein. Penalty against Shri Shailendra Bahadur, Assistant Chemical Examiner. - There is no allegation that Shri Shailendra Bahadur was in touch with the importer or his agents nor did he take any money from the importer for testing the sample. In the absence of any evidence directly inculpating Shri Shailendra Bahadur in the commission of the offence, we are of the view that imposition of penalty on Shri Shailendra Bahadur cannot sustain in law. - penalty set aside

Summary

Issues Involved:
1. Imposition of penalty on Shri Brajesh Y. Tiwari.
2. Imposition of penalty on Shri Kishun Ram.
3. Imposition of penalty on Shri Shailendra Bahadur.

Detailed Analysis:

1. Imposition of Penalty on Shri Brajesh Y. Tiwari:

The charge against Shri Brajesh Y. Tiwari was that he was aware of the misdeclaration of the imported goods and did not inform the Customs authorities. He knew that the actual proprietor of M/s. Kalinga Trading Co. was Shri Jainarayan Rajbhar, not Shri Prakash Surendra Tiwari as declared. He also knew the goods were analgin, not ABC dry chemical powder for fire extinguishers. Despite this knowledge, he facilitated the clearance of the goods under false declarations. The tribunal found that Shri Brajesh Tiwari's omission and commission abetted the illegal import, making him liable for penalty under Section 112(a) of the Customs Act, 1962. However, considering the small amounts involved in the clearance work, the penalty was reduced from Rs. 3,00,000/- to Rs. 75,000/-.

2. Imposition of Penalty on Shri Kishun Ram:

Shri Kishun Ram was accused of accepting a bribe of Rs. 1,00,000/- to manipulate the test report of the imported samples. The tribunal noted that the testing of samples was not allotted to him, and there was no substantial evidence to prove that he manipulated the test report. The charge of manipulation could not be substantiated as the actual testing was done by Shri Shailendra Bahadur. The tribunal emphasized that dereliction of duty alone is insufficient to prove abetment without evidence of knowledge and benefit. Consequently, the penalty on Shri Kishun Ram was set aside, though this finding does not affect any departmental disciplinary proceedings against him.

3. Imposition of Penalty on Shri Shailendra Bahadur:

Shri Shailendra Bahadur was charged with abetting the misdeclaration by allegedly fabricating the test report. He tested the samples and reported them as white powder, while other agencies identified the product as analgin. A retest of the remnant sample confirmed his original findings. The tribunal found no evidence that Shri Shailendra Bahadur was in contact with the importer or received any money for manipulating the test results. In the absence of direct evidence implicating him in the offense, the tribunal set aside the penalty imposed on him, applying the same legal principles as in the case of Shri Kishun Ram.

Conclusion:

The tribunal set aside the penalties imposed on Shri Kishun Ram and Shri Shailendra Bahadur. The penalty on Shri Brajesh Tiwari was confirmed but reduced to Rs. 75,000/-. The appeals were disposed of accordingly.