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TMI Blog2025 (4) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... nothing to do with 'personal penalty' usually visited upon individuals of one sort or another; nor are these about the occasional individual fastened with liability to duties of customs. On the contrary, neither has any penalty yet been imposed, nor is any duty liability going to be fastened, on them. All four are apprehensive that there is every possibility, or, more probably, all likelihood of, having to knock at the doors of the Tribunal someday. Because, were this premonition but a figment of their imagination the adjudicating authority, who is yet to be, would not have turned down the plea of limitation, built into section 155 of Customs Act, 1962 and could have been resorted to, as bar to continuation of proceedings arising from notice proposing imposition of penalty under section 112 of Customs Act, 1962 on them. And because, in the same vein, a conclusion was drawn, wrongly and on a plea not made, that the impugned activities could not be claimed as bona fide discharge of official duties. Though the orders impugned here are different for each appellant, the disposal having been identical, the appeals are disposed off by common decision and we shall be referring to only one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Act, 1962, may well have been legislatively intended to be as claimed by the appellants or, per contra, may not. Either way, an appellate authority, and, that too, the second, should not let facts jaundice view of the findings through the prism of enacted law and judicial precedent except to the extent that lower authorities have touched upon those. We dare say that the first appellate authority was not correct in letting facts, yet to be established in adjudication, influence the outcome of appeal. In such circumstances, that there are oddities does not surprise. 3. The first of the oddities is that the adjudicating authority has, vis-à-vis the findings against the appellants, forsaken the privilege of functus officio even while, and because of, consciously ruling itself competent to advance proceedings on merit. But in choosing not to, the proceedings have been ground to halt, albeit temporarily, till this appeal on statutory competence is adjudged and, probably, even beyond should either side press further for reversal of decision resolving the dispute in these appeals. Oddly so, even an order [order-in-appeal no. MUM-CUSTM-APSC-APP-336/20-21 dated 11th September 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l call taken by no less than the appointing authority. That may not be feasible here owing to statutory constraints but the very portrayal of empowered hierarchy in section 3 of Customs Act, 1962, coupled with the all too foreseeable difficulty which the adjudicating authority would have to deal with that the Central Board of Indirect Taxes & Customs (CBIC) could not have been oblivious of, should have prompted raising of the level of adjudication. A responsible disposal of the notice could, thus, be expected and was even probable. 5. If only the horns of dilemma were just two, the orthodox alternatives, viz., taking the horns for brazenly leaping over or passing unobtrusively between them, would suffice but the unorthodoxy in the scope of this provision of law having remained indeterminate for over six decades since enactment of Customs Act, 1962, increases the number of horns. So the original authority 'threw sand in the eye', so to speak, and the first appellate authority attempted to 'sing the bull to sleep', metaphorically. The last of the of three neo-classical options, i.e., refusing to enter the arena, is not a luxury that we can contemplate let alone indulge in. So to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determination by the Tribunal in Commissioner of Customs v. MI Khan [2000 (120) ELT 542 (Tribunal)] and in Commissioner of Central Excise, Hyderabad-II v. Rajiv Kumar Agarwal [2007 (217) ELT 392 (Tri-Bang)], with the order [order-in-appeal no. MUM-CUSTM-APSC-APP-336/20-21 dated 11th September 2020] noting that '10..... appellant has been granted time to reply to the said notice, an opportunity which can be availed by him for putting forth his best defence and subsequently, the appellant would also be granted an opportunity to be heard in person, if he so desires. Further, the adjudicating authority is required to take the submissions of the appellant into consideration before passing any order. Thus the principles of natural justice will be met and appellant will be granted all possible opportunities under the law for redressal of his grievances. I find that issuance of a SCN is the first step for adjudication proceeding to follow, wherein enough safeguards for taking care of principles of natural justice are stipulated. Further as the nomenclature goes, show cause notice is nothing but a notice of the adjudication proceedings to follow. Therefore, in my view, the requirements of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icity of officials or unrestrained resort by investigation and, with both from the same stock, is not a good reflection of either. It is of concern that increasing resort may not always be in public interest and, negation at appellate stage notwithstanding, is as good as continuation of damage commenced against officers, as individuals, and, as common weal, to public interest. Customs Act, 1962 offers deployment of section 136 and well as section 132 - corresponding to the charges here - for prosecuting officers of customs but, as is evident, that would be subject to judicial sieve from the very beginning and neither to be entered into lightly nor retreated from hastily. That the flexibility of quasi- judicial proceedings makes for neither accountability nor responsibility, especially in confirming proposals in show cause notices, and evaluation of being legal and proper taking its own time does invite opportunities for misuse of, or undeliberated recourse to, such proceedings. An assessee, in such circumstances, is, doubtlessly, put to inconvenience but does not impede continued privilege of import and export while the officer is stigmatized till the discharge occurs, if it does a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsence of specific inclusion of 'officers of customs' in section 112 and section 114AA of Customs Act, 1962 is no less akin to absence of disbarment of one sort of proceedings against 'officers of customs' from the safeguard ambit of section 155 of Customs Act, 1962. The law is not an instrument of convenience; flexibility, appropriated for invoking jurisdiction from one provision to the exclusion of other, is nothing but encroachment unless legitimized by good grace in accepting restrictions implicit in the other. The absence of judicial rulings, except the few and of recent vintage, is not an indication that the present appellants, finding themselves in this predicament, are clutching at mere straws unless it can be shown that such proceedings through adjudication are, statistically, a norm and not deviation. Indeed, Learned Special Counsel, in response to a direct query, was unable to substantiate so. The past may, no doubt, a guide to acceptability of legislative intent but, in relation to penalties consequent upon quasi-judicial proceedings under taxing statutes, which, characteristically, are less of 'third person' institutional decision and more of 'first person' determinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out the proceedings - not excluding such as the one before us - affords protection to the very same three and, even if not absolute, as the first, through procedural pre-requisite and deadlines. That would appear also to be of deliberate design to ensure diligence on the part of customs authorities which may be deviated from only at the cost of non- compliance and inaction. Every proceeding in which officers of customs are noticees is, therefore, bound within legislated safeguards and responsibility. It was necessary to place the appellants herein on notice of proposal to proceed against them. That, patently, has not been fulfilled and the dismissal of their plea has fallen short in answering the claim of appellants that 'or' must be read as 'and', which, if held, will be fatal to the proceedings, as well as on the claim that limitation has kicked in by sheer efflux of time. 14. The original authority, with determination of absence of 'good faith' in acts of omission and commission on the part of the appellants, has skirted the template of section 155(2) of Customs Act, 1962 which lacks that motif. The finding is perverse for not only having invoked a test which is in the preserve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8). 36......It is one of the well known canons of interpretation that no statute should be interpreted in such a manner as to render a part of it redundant or surplusage.' in Chief Information Commissioner & Anr v. State of Manipur & Anr [AIR 2012 SC 864]. We do not have to dwell any further on the impropriety in disposal of the challenge before the first appellate authority in the light of settled law. 15. We have, nonetheless, cause to pause on another aspect too as the first appellate authority has dwelt upon two decisions of the Tribunal in such manner that we are compelled to recall the strict injunction of the Hon'ble Supreme Court, in Union of India And Others v. Kamalakshi Finance Corporation Ltd [AIR 1992 SC 711], on the inexorable fallout of judicial discipline observed in breach. Adjudicating authority and appellate authority may choose not be persuaded by judgements that are distinguishable on facts and law but no lower authority may sit in judgement upon any decision of higher authority for chastising or discrediting. That Revenue chose not to challenge the said decisions rendered those to be final and binding on all lower authorities. We do not dilate any further ..... X X X X Extracts X X X X X X X X Extracts X X X X
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