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TMI Blog2023 (9) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... . Purushottam Gupta, (then Assistant Commissioner) is in appeal against imposition of penalty of Rs 1,00,000/- under section 114 (iii) of the Act. In the earlier round, this Tribunal had allowed the appeal of this appellant and others by way of remand vide Final Order No. CA 54604-54621/2017 dated 5th July 2017. 2. The facts in brief are that Ms. Chandra Hans Brothers (Main Appellant) had exported 100% polyester fabrics during period 11.08.2008 to 25.10.2008 under the claim for DEPB benefit. The Revenue entertained a view that these goods which were exported were substantially over valued in order to avail inadmissible benefit under DEPB scheme. Investigations were carried out and finally SCN dated 27.08.2013 was issued to 17 persons to disallow DEPB, demand customs duty and to impose penalties. The case was adjudicated and the impugned order was issued. The original authority rejected the declared FOB value for exported goods and re-determined the same to Rs. 3,44,34,882/- instead of 31,18,43,803/- declared by the exporter. DEPB benefit to the extent of Rs. 27,95,614/- has been cancelled. Customs duty forgone by utilizing the DEPB scrips attributable to such overvalued exports ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Asstt. Commissioner)-appellant, Sh. S.K. Singh (Superintendent) and Sh. R.K. Mathur (Inspector) were working as customs officers during material time and having handled the export consignment in their capacity as officers incharge, were imposed with penalties under Section 114(iii) of the Customs Act, 1962 holding that they have facilitated M/s Chandrahans Brothers in overvaluing the export goods and consequently getting ineligible DEPB benefit. All these appellants contested the penalties imposed on them. It was submitted there is no allegation of abetment in the SCN and there is no evidence to the effect that the appellants working as officers have committed any act or omitted to do any act which will tantamount to abetment. They have acted in the course of their official duties. Even if it is considered that there could be a case for negligence or inefficiency, the same cannot be ground for holding the charge of abetment in order to invite penalty under the provisions of Customs Act, 1962. There is no evidence or documentary proof that the officers have knowingly abetted any illegal transaction of the exporter. 7. In the second round pursuant to remand, the allegation of ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Commissioner of Customs also signed it. When PMV was not declared, how it was stated to be correct as per market inquiry. (ii) Examination report on the reverse of all 6 shipping bills is silent about withdrawal of samples for conducting market inquiry. (iii) No report from expert is found attached to shipping bills. (iv) The Assistant Commissioner of Customs, Inland Container Depot, The Thar Dry Port, Jodhpur vide letter C. No. 1-8(01) Conf/TDP/JDR/08 dated 25-05-2009 intimated that all office records including file opening register have been searched and that no file/documents pertaining to M/s. Chandrahans Brothers, Jodhpur is available. (v) From the gate passes it is observed that there is very less gap between the time when the export goods had entered the ICD and the stuffed container had left the ICD. The goods had entered at 15:01 and 15:18 Hours on 11-08-2008 in two trucks (First shipment of S.B. Nos. 53 to. 58) and the container had left at 20:40 Hours. No MOT charges had been paid by the exporter or its CHA. It could not be possible in such a small span of time to complete all the formalities regarding drawal of samples, their market enquiry, giving let e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the date of assessment is bad and barred by limitation. Further, no duty of export is leviable on the exporter on the date of assessment of shipping bill. Thus, no revenue was involved on the date of assessment of shipping bill. Further, all information such as assessment, description of goods market enquiry report, examination of goods, Let-export order, details of consignee, details of CHA, value of goods shown in shipping bill, DEPB rate, applicable, applicable value in DEPB schedule, work allocation in ICD to different officers, circulars issued by DGFT on foreign trade policy, etc. are all within the knowledge of the Department. There is no case made out of any concealment of information or records. Further, in the department, there is a well developed system of audit. Further, officers of Higher Cadre regularly visit the ICD from time to time. There are also preventive and intelligence wings comprising of well experienced and knowledgeable officers working in Jodhpur as well as at the Customs Headquarters at Jaipur. The showcase notice is bad for invocation of extended period of limitation. Further, the FOB value was accepted based on market enquiry which was conducted b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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