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TMI Blog2016 (5) TMI 1063X X X X Extracts X X X X X X X X Extracts X X X X ..... e instant case. By not giving any such opportunity or following corrective procedure, Adjudicating authority has gone beyond the scope of show cause notice which is not permissible as per case laws relied upon by the appellant, which also include ratios laid down by Apex Court. Nowhere in the records it is coming out that appellant was required to supervise 100% stuffing & examination of the cartoons in the containers. Even if there was some negligence on the part of the appellant the same has been taken care of by departmental proceedings and no penalty could be imposed under the Customs Act 1962 as per the relied upon case laws. There is also no evidence on record that appellant was aware that second hand used clothes are being exporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons as against 2,14,400 pcs declared in 1216 cartoon in the shipping bill. That appellant has only supervised the factory stuffing of the containers for sometime which were examined by Sh. Rabindra Nath Mistri, Inspector, who was required to examine stuff cartoons thoroughly. It was the case of the appellant that penalty in the show cause notice was proposed under Sec 112 (a) but has been imposed by Commissioner under Sec.114 of the Customs Act 1962. Learned Advocate argued that Adjudicating authority can not go beyond the scope of show cause notice as per the following case laws:- (i) CCE, Ludhiana Vs Non Bharat Engineering [2004 (163) ELT 83 (Tri.-Del)] (ii) CCE, Mumbai Vs Toyo Engineering India Ltd [2006 (201) ELT 513 (S.C.)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus his case that appellant was correctly visited with penalty under Sec 114 of the CA 1962. That it is a settled legal position that mention of wrong Section in the show cause notice does not vitiates the proceeding if penalty was imposed correctly under Sec 114 of the CA 1962. Learned AR relied upon the case law Zaki Anwar Vs CC, New Delhi [2006 (197) ELT 510 (Tri.-Del)] where penalty imposed on the Inspector under similar facts was upheld by CESTAT. Learned AR thus strongly defended the order passed by the Adjudicating authority. 4. Heard both sides perused the case records. The issue involved in this proceeding is whether penalty under Sec 114 of the Customs Act 1962 has been correctly imposed upon the appellant. Appellant has rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that appellant was required to supervise 100% stuffing examination of the cartoons in the containers. Even if there was some negligence on the part of the appellant the same has been taken care of by departmental proceedings and no penalty could be imposed under the Customs Act 1962 as per the relied upon case laws. There is also no evidence on record that appellant was aware that second hand used clothes are being exported that quantities actually being exported are much less than the quantities declared in the shipping bill. No statement has been brought on record indicating knowledge/connivance of the appellant regarding misdeclaration in the assessment documents. 7. So for as issue at Para-4 (iii) above is concerned, it is observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al filed by the Revenue, it has not been highlighted that there is any material to show that the Respondents had connived with the exporter in misdeclaring the goods. What has been mentioned in the Memorandum of Appeal, filed by the Revenue, only highlights the derelication of the duty by the Respondents which is not sufficient for imposing penalty under Section 114 of the Customs Act. The learned Advocate has emphasised that there is no allegation or proof of consideration having been demanded by the Respondents or paid or supposed to be paid by the exporter. We also observe that this aspect has also been mentioned in the impugned order. The exporter, Shri Kuldeep Singh, has clearly denied knowing any of the Respondents personally. In his ..... X X X X Extracts X X X X X X X X Extracts X X X X
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