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TMI Blog2012 (10) TMI 872X X X X Extracts X X X X X X X X Extracts X X X X ..... testing the goods, they were found to be analgin, a bulk drug of Chinese origin, attracting anti-dumping duty. It was further found that the value of the goods under importation was misdeclared. The case was adjudicated vide the impugned order and the value of the goods was finalised at Rs. 24,80,000/- on the basis of contemporaneous imports and the goods were confiscated with an option to redeem the same on payment of a fine of Rs. 10 lakhs. The differential duty was determined at Rs. 29,00,608/-. Penalties were imposed on the importer and six others including the three appellants, viz. Shri Brajesh Yougalkishore Tiwari, prop. M/s. Shraddha Shipping Services, Shri Kishun Ram, Assistant Chemical Examiner, and Shri Shailendra Bahadur, Assistant Chemical Examiner. The appellants are before us against the imposition of penalty on them. 3. The charge against the first appellant, Shri Brajesh Y. Tiwari, is that he 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. When the dispute in customs clearance arose, Shri Tiwari le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that it was ascertained during investigations that he tested the sample drawn from the imported consignment covered by bill of entry No. 484999 dated 10-8-2004. He had tested the sample and prepared the report on 3-9-2004 itself whereas the sample drawn from the consignment covered by bill of entry No. 484990 dated 10-8-2004 was marked to another Assistant Chemical Examiner earlier which had been tested only on 6-9-2004. Further, the test result of the sample tested by Shri Shailendra Bahadur had been fabricated because the samples after the drawal in the Docks by the Appraiser had been deposited in the office of the Deputy Chief Chemist after obtaining due acknowledgment by the preventive officer of the Customs. The report prepared by Shri Shailendra Bahadur that the sample is not of 'analgin' is not correct as the control sample retained by the Customs had been tested from Forensic Science Laboratory, Kalina and they had reported the samples as 'analgin'. Further, samples were again drawn from the same consignment and sent for testing to Deputy Chief Chemist as well as Geo-Chem Laboratories, Thane. Both have reported the sample as 'analgin'. Besides, a copy of the test ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of the alleged monetary consideration of Rs. 1 lakh paid to Shri Kishun Ram, there are contradictions about the time and manner of payments in the various statements. In the lack of any material evidence, Shri Kishun Ram cannot be declared as guilty of the offence charged against him and, therefore, penalty cannot be levied on Shri Kishun Ram. 7. The learned counsel for Shri Shailendra Bahadur submits that he had undertaken the test of one set of the samples drawn by the investigating agency and had given a test report saying that the sample was in the form of white powder consisting of phosphates and sulphates of ammonium. Even though other samples drawn from the same consignment tested by other agencies confirmed the fact that the product in question was analgin, the remnant sample was once again tested by the authorities and it was found that the original test report given by the appellant was correct and, therefore, the charge against him that he manipulated the test report is not proved. 8. The learned AR representing the Revenue reiterates the findings given by the adjudicating authority. 9. We have carefully considered the rival submissions. 9.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sample was in the form of a white powder consisting of phosphates and sulphates of ammonium. The only charge that can stick on Shri Kishun Ram is that he had handed over a copy of the test report before it was signed by Chemical Examiner to Shri Ajay Bhan and Shri Santosh Dabhade. However, it should be noticed that three sets of samples were drawn and sent to three different agencies. Therefore, by manipulating one test report, he could not have helped the importer in any way. In as much as he himself has not undertaken any test, the charge of manipulation also does not survive. Further, in the absence of any evidence that he substituted the samples drawn for test, his role in the fabrication of a false or wrong report is also not proved. This Tribunal in the case of CCE, Bangalore v. M. Naushad reported in 2007 (210) E.L.T. 464 (Tri.-Bang.) held that to prove the charge of abetment, it is not enough to show any dereliction of duty. Similarly, in the case of CC, New Delhi v. Hargovind Export reported in 2003 (158) E.L.T. 496 (Tri.-Del.), it was held that highlighting the dereliction of duty on the part of officers is not sufficient for imposition of penalty unless it is brought on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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