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TMI Blog2024 (2) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... was present even upon declaration in the bill of entry that mixed hydrocarbon oil had been imported well before any act, if any, on the bills of entry and assessment thereto by customs officials. In the light of intent of section 112 of Customs Act, 1962, the respondents could not have been charged with contributing, by act of omission or commission, to confiscation of the impugned goods owing to crystallization of liability on the goods with the declaration. As the finding of the adjudicating authority remains unchallenged except to the extent that review has contended that illicit gratification should have sufficed as reason enough to fasten the finding of abetment, we turn to that aspect first. We have perused the relevant portions of the show cause notice comprising the depositions of Mr Kishan Pote and Mr Manish Thakkar, who did admit to some payment having been made over for each container to different levels in the customs hierarchy, but these are general allegations which do not name the respondent-officials as recipients. The other statements, too, are as deficient in specifics though it does appear that payment, if at all, was not made for finalization of pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pathy over the initiation of multiple proceedings, or even his conviction that they should not have been, does not alter the lack of any effect on the findings on merit that remain unimpeached for reason of absence of valid challenge in appeal and our own observations supra on the deficiencies in the notice issued to respondent-officials. That the impugned order referred to, and held forth, on the plea of double jeopardy claimed by the respondent-officials without acting upon it is not the deficiency, of not being legal and proper , contemplated in section 129A of Customs Act, 1962 warranting remedial action. Thus , we find no reason to accede to the prayer for the notice to be re-determined in remand proceedings. We also do not find any reasons in the grounds of appeal to modify the order of the adjudicating authority. Appeals are dismissed. - HON BLE MR C J MATHEW , MEMBER ( TECHNICAL ) And HON BLE MR AJAY SHARMA , MEMBER ( JUDICIAL ) Shri Ranjan Kumar , Assistant Commissioner ( AR ) for the appellant Shri S N Kantawala , Advocate for the respondents ORDER PER : C J MATHEW The fate of two customs officials is before us. The customs officials cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and to complete the target for the finalization of provisional assessment of 300-500 on every week other than the routine work of Groups ie, assessment of live consignments, cancellation bonds etc. Due to this work pressure, they have failed to do the detailed scrutiny/ examination of the Test reports Nos. vis-a-vis Bill of Entry No. before finalization of the assessment of goods, which are restricted in nature as per the DYCC Test Report. Further, both the officers have denied any mala-fide intention and/ or receiving of any remuneration for overlooking the procedure set out. 105. Upon carefully examining the allegations made against the officers and replies placed, I am of the opinion that, in order to attract Section 112(a) (b) of the Customs Act, 1962, the SCN has to establish some act by which these officers have abetted the offence. Further, examining the term abetment I place reliance on Section 107 of Indian Penal Code, wherein abetment is defined. As the third limb of this definition, if a person intentionally aids, by any act or illegal omission, the doing of that thing , it would be abetment of an offence. However, MENS REA is the main ingredient as the third l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the decision not to accept the findings in their favour. These aspects were not pressed and we, therefore, desist from traversing in that direction; we restrict ourselves to evaluation of the grounds that, to the extent of statutory obligation devolving on reviewing authority, are set out as advancing the contention that the impugned order is not legal and proper. 4. The grounds preferred by the review authority are that, with the investigation having unearthed illicit gratification received by the officers for clearance of goods belonging to the syndicate , the adjudicating authority was, in the context of the finding that goods were liable to confiscation, bound to impose consequential penalty under section 112 of Customs Act, 1962, that the protection of section 155 of Customs Act, 1962, which the adjudicating authority found itself in agreement with, was unavailable in the light of facts, of illicit gratification and improper finalization of provisional assessment, and that the relief, extended on grounds of disciplinary proceedings tantamount to double jeopardy, from the present proceedings is incorrect appreciation of law. These aspects were urged for acceptance by Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon declaration in the bill of entry that mixed hydrocarbon oil had been imported well before any act, if any, on the bills of entry and assessment thereto by customs officials. No further step in assessment and clearance would have contributed to enhancing, or mitigating, the gravity of that act of declaration in the bill of entry. Had it been otherwise, an appeal would surely have been instituted against the finding of ab initio misdeclaration as also the contributory role of the respondent-officials to subsequent invalidation of proper import. Hence, in the light of intent of section 112 of Customs Act, 1962, the respondents could not have been charged with contributing, by act of omission or commission, to confiscation of the impugned goods owing to crystallization of liability on the goods with the declaration. As the finding of the adjudicating authority remains unchallenged except to the extent that review has contended that illicit gratification should have sufficed as reason enough to fasten the finding of abetment, we turn to that aspect first. 8. Before doing so, and in context of attitude to discharge of review function manifest in neglecting to examine the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eared that both, Smt. Sayali Lotankar and Shri Sahil Seth had done or omitted to do certain acts which had rendered the goods liable to confiscation, by their failure to properly discharge their duties as Customs Officers. makes no reference to illicit gratification let alone of such having been received by the respondent officials. Clearly, this appears to be an attempt at altering the contours of the notice at the appellate stage which appears to dovetail fittingly with the prayer for remand. That our inference of the review committee being sensible only to the contents of notice as grafted into the impugned order, and not the notice itself, appears unimpeachable from this feigning of injured innocence compounded by lack of any tracing of contents of show cause notice as pattern for evaluation of that which was not legal and proper. Or perhaps, there was sufficiently adequate familiarity with the contents of the notice as to be aware of absence of such allegation in the proposal to impose penalty on the respondent-officials. Perusal of the notice may throw further light that may be blindingly illuminative but that need not detain us. We merely restrict ourselves to observi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how cause notices. It is well settled that the show cause notice is the foundation in the matter of levy and recovery of duty, penalty and interest. If there is no invocation of Rule 7 of the Valuation Rules 1975 in the show cause notice, it would not be open to the Commissioner to invoke the said rule. We, therefore, are in full accord with the findings of the adjudicating authority that there is no evidence of any illicit gratification having been received by the respondent-officials for any decision of theirs. We also hold that the attempt to insinuate padding, by invoking of appellate remedies, to a failed proposal is neither legally condonable nor procedurally validated. 11. A perusal of section 112 or, for that matter, any other provision of Customs Act, 1962 would not elicit reference to illicit gratification which, it would appear, did not impress itself upon the review committee obligated to ascertain the extent to which adjudication order is legal and proper and seek remedy only to that end. The notice has suggested that finalization of assessment, and erroneous at that, triggered clearance of restricted goods owing to which the goods were liable for confiscat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice. 12. The other two issues preying upon the minds of the review committee can hardly be perceived as primary cause of the adjudicatory outcome that is challenged before us. The findings in the impugned order and our scrutiny of the charges in the notice leave no room for doubt that the proposals in the show cause notice issued to the respondent-officials had as much odds of survival as a snowball in a fireplace. The plea of protection of section 155 of Customs Act, 1962 and double jeopardy had been raised by the officials in their response to the notice and it was incumbent on an adjudicating authority to dispose of all pleas. That he did so is not a fault. That he did so in a manner which has aggrieved the committee of review sufficiently to plead for re-determination in remand proceedings is to accord it gravity beyond that evident from a reading of that portion of the impugned order. 13. Section 155 of Customs Act, 1962 is intended as safeguard against initiation of suits, prosecution or legal proceedings for acts in pursuance of official responsibilities. The bar on initiation of proceedings for acts undertaken in good faith and espousal of notice as essent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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