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TMI Blog1999 (1) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... of the BDF, for having examined the goods gave "out of charge" order for the two packages. When the packages were being taken out of the Customs Area around 6.15 P.M., the Jamadar /Havaldar - Shri Vishnu Mhasu Kardak - on duty at the lift on perusal of the baggage form vis-a-vis the goods being taken out, found two air-conditioners in their original packing. Thereupon he demanded the duty payment document. When the same was not forthcoming, he refused to allow passage and returned the packages to the Air India Warehouse from where they had been brought. On 27-4-1994, the said Jamadar/Havaldar reported the matter to the Supdt. of Customs in charge of the UBC - Shri G.S. Salvi - who in turn informed the A.C., UBC - Shri C.M. Choudhury. The AC called the Jamadar/Havaldar and enquired facts from him, he also called the BDF from the BO and directed the respondent to make enquiry from the concerned BO. The BO scratched the earlier declaration of personal effects and changed the same to two National Air-conditioners and charged Rs. 24,000/- as duty. Though the duty was a actually collected on 27-4-1994, yet the date of preparation of duty receipt, pre-audit stamp and signature were dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated the respondent by stating that he put the back date signature on the duty receipt only on latter's instructions. (d) The packages containing air-conditioners in original packings are apparently quite obvious, cannot be construed to be packages containing used apparels etc., this should have given the respondent enough ground to proceed further before giving his counter signature on BDF for assessment and out of charge; as such the respondent failed in discharging his duty while supervising the examination and assessment of customs duty. The applicant pleaded that on this score alone findings of the Appellate authority deserves to be set aside. 4.Based on the Revision Application received from the applicant Commissioner a SCN was issued to the respondent on 27-5-1998. Personal hearing was fixed on 8-7-1998 at camp, Mumbai and intimation was sent to the respondent and the applicant Commissioner on 16-6-1998/17-6-1998. The respondent vide letter dated 18-6-1998 intimated that he has received the SCN on 16-6-1998. He requested for personal hearing at Mumbai and two months time for replying to the SCN due to his Advocate's eye operation. However, he was again informed vide tel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's version that the respondent was given the BDF to enquire the matter from the concerned BO (Page 2, lines 14 15 of order-in-original) has no evidence. 7.7He accordingly concluded that the order-in-appeal is legal, proper and the Revision filed by the Commissioner of Customs is not sustainable. 7.8The applicant Commissioner's representative wanted time to file a counter to the reply given by the respondent to the SCN. So far no reply has been received from him. 8.Government has gone through the Revision Application filed by the Applicant Commissioner together with the reply to the SCN issued by it, submissions made during the personal hearing and also the original case records, that were called for with a view to perusing the facts and the documents first-hand. The records as sent have been perused. But a vital document, i.e., the alleged report of the AC, UBC - Shri C.M. Choudhury - made to the Air Cargo Intelligence Unit - has not been made available. The basic question that is to be answered in this case is whether the respondent deserved the personal penalty under Section 112 of the Customs Act, 1962 as imposed by the original authority or did not deserve it as held by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of the contents, such as, old and used clothes, blankets, and kitchen utensils, and replaced by two National Air-conditioners, the respondent instructed him to audit the BDF in back date of 26-4-1994, that along with the BDF the duty Receipt No. 072755, dated 26-4-1994 was also brought by the respondent for pre-audit on 27-4-1994. He audited the duty receipt on 27-4-1994 but as per instructions of the respondent, signed and assigned as 26-4-1994 but did not intimate about it to the AC, UBC. The statement of Shri P.K. Gogry, auditor, has not been retracted or denied or proved to be coloured by the respondent in course of the proceedings. Therefore, this point also goes against the respondent and the argument of the learned Advocate at para 7.5 supra is misleading. A perusal of the Order-in-Original (page 36 para 6) clearly shows that the BO had corrected the BDF, prepared the duty receipt with the help of the respondent. 10.4It would thus be evident from the above that the respondent has not only failed to supervise the work of the BO but also allowed him to change the original declaration, examination report in the BDF without consulting the AC, UBC. 11.So far as the poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of making the enquiry, he handed over the BDF to the BO for rectification of the lapse. Further, he instructed the auditor to ante date his signature in the duty receipt. These acts (even though there is no clear investigation by the Department) shows the culpable state of mind of the respondent in clearance of the impugned air-conditioners on 26-4-1994 in the guise of used clothes, blankets and utensils. Coming to para (f), being the Superintendent of Unaccompanied Baggage, it was his primary responsibility initially to supervise the work of the officers under him, but also to take corrective measures while working. Further the goods in the instant case were only unaccompanied goods imported by a pax after a brief visit of nineteen days and these were not T.R. goods. Therefore, when the declaration in the BDF was for used clothes, blankets and utensils, as a supervisory officer, the respondent ought to have suspected the declaration and examined the goods. Even otherwise, as a Superintendent, he is supposed to conduct a percentage check of the baggage sought for clearance. Even a cursory examination was not carried out by the respondent because the two National Air-conditioners ..... X X X X Extracts X X X X X X X X Extracts X X X X
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