9911796707
TMI Blog2007 (5) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise and (ii) Shri P. Srinivas, Superintendent of Customs & Central Excise, Hyderabad. The brief facts are that M/s. Pashupathi Traders, Secunderabad, filed 8 Shipping Bills, all dated 03rd January, 2001 declaring the goods exported by them as "NAPROXEN" under the DEPB Scheme. The goods were stuffed after examination by the Customs at ICD Hyderabad in container No. OCLU 0920358 for export to UAE via Nhava Sheva port. The DRI Officers intercepted two consignments of cargo in two containers cleared through Hyderabad ICD for detailed examination including the above consignment, which was lying at Nhava Sheva docks for shipment to UAE. On examination, it was found that the material was not Naproxen. The goods were seized under the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Notice are clearly not bona fide or in good faith. (ii) Further, Section 155 of the Customs Act would not be applicable to the said adjudication proceedings under Section 122 of the Customs Act 65, which are quasi-judicial in nature whereas Section 155 refers to "suits, prosecutions or legal proceedings" before the Court. This has been clearly brought out in the ratio of the Supreme Court order in the matter of Costao Fernandes v. State at the instance of D.S.P., CBI, Bombay- 1996 (82) E.L.T. 433 (S.C.). (iii) The charges framed against the departmental officers and the role they have played in the case have been admitted by them in statements recorded by the investigating agency and relied upon in the Sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signments, which were detained is that they had not drawn sample at the time of giving the let export permission, but, have attempted to antedate the drawal of sample to establish that they have either ordered for or drawn the sample and they have, therefore, performed their duties. The above reaction of the Officers to antedate the drawal of sample is only a panic driven reaction and it has no consequence as the goods which were imported at Dubai were Naproxen only and not chalk powder. The Bill of Entry dated 2-1-2001 filed at Dubai has been relied in the Show Cause Notice. (iv) If the officers were aware that the goods in the container were different from the goods, the samples of which have been given to them by the exporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i v. Amar Bitumen & Allied Products Pvt. Ltd. - 2006 (202) E.L.T. 213 (S.C.) (c) CCE, Hyderabad v. Novapan Industries Ltd. - 2007 (209) E.L.T. 161 (S.C.) = 2007 (79) RLT 237 (S.C.) (d) Jyothy Laboratories Ltd. & Am. v. CCE, Calicut - 2007 (78) RLT 276 (CESTAT-Bang.) (vi) The Tribunal, in the case of CC, New Delhi v. M.I. Khan - 2000 (120) E.L.T. 542 (Tribunal), by following the Apex Court's decision in Costao Fernandes case, held that the protection under Section 155 would also apply to the adjudication proceedings as well. This decision has not been appealed against by the department. Further the above decision has been followed by this Bench in the case of A.P. Sales v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the then Deputy Commissioner of Customs, was aware of the quality of the item being exported. He instructed the Superintendent and the Inspector for speedy clearance of the consignment on the request of Shri Rajnish Agarwal. He has not made any endorsement on the shipping bills for drawal of samples. On learning from Rajnish Agarwal about the detention of the consignment at Nhava Sheva port, he made an antedated endorsement on 8-1-2001 on the Shipping Bill No. 78 and 84, dated 3-1-2001 directing to draw samples as if the endorsement was made at the time of assessment itself on 3-1-2001, apparently to cover his lapse. He advised the Superintendent to collect any left over samples of previous consignment and show it as if drawn from the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Costao Fernandes v. the State. On going through the Coasto Fernandes decision, we do not find in that decision anywhere holding that Section 155 of the Customs Act would not be applicable to the adjudication proceedings against the Customs Officers. We reproduce Section 155 of the Customs Act. "155. Protection of action taken under this Act. - (1) No suit, prosecution or other legal proceeding shall lie against the Central Government or any officer of the Government or a local authority for anything which is done, or intended to be done in good faith, in pursuance of this Act or the rules or regulations. (2) No proceeding other than a suit shall be commenced against the Central Government or any officer of the Government or a local ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
