Custom, Excise & Service Tax Tribunal
Commissioner Of Customs (Prev.), W.B vs Shri Arun Chakraborty on 13 August, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, EAST REGIONAL BENCH : KOLKATA
Cus. Appeal Nos.44,55,65,56 & 61/09
Arising out of Order-in-Appeal Nos.Kol/Cus/CKP/402/08 dated 21.11.2008, Kol/Cus/CKP/407/08 dated 24.11.2008, Kol/Cus/CKP/410/08 dated 24.11.2008, Kol/Cus/CKP/406/08 dated 24.11.2008 & Kol/Cus/CKP/409/08 dated 24.11.2008, all passed by Commr. of Customs (Appeals), Kolkata.
SHRI S. S. KANG, HON'BLE VICE PRESIDENT
1. Whether Press Reporters may be allowed to see
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982? :
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not? :
3. Whether His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Commissioner of Customs (Prev.), W.B.
...APPELLANT(S)
VERSUS
Shri Arun Chakraborty
Shri Khitish Chandra Barman
Shri Shri Ranjit Das
Shri Arabinda Das
Shri Arabinda Das
RESPONDENT (S)
APPEARANCE Shri J. A. Khan, SDR for the Department Dr. Samir Chakraborty, Advocate for the Respondent (s) CORAM:
SHRI S. S. KANG, HON'BLE VICE PRESIDENT Date of hearing & decision : 13.08.2009 ORDER NO......................................................................................... Per Shri S. S. Kang :
Heard both sides. The Revenue filed these appeals against a common impugned order whereby penalties of Rs.10,000/- each on Shri Arun Chakraborty, Shri Khitish Ch. Barman & Shri Arabinda Das and penalty of Rs.5,000/- on Shri Ranjit Das, were set aside. The Commissioner of Customs (Appeals) held as under :
"5. It is the decision of the lower authority that no physical exports had taken place to Bangladesh on account of connivance, inter-alia, with the Superintendent. But the job assigned to the appellant Superintendent is only of giving examination order. He is in no way connected with the physical examination and export of the goods. The lower authority has not controverted this submission of the appellant. Also the lower authority has not adduced any evidence that the appellant had connived with the exporter, that is, the appellant had an agreement well in advance with the exporter to deceive the Government by showing the exports whereas no physical exports were to take place. When that is the case, the Superintendent cannot be held responsible if the goods have not been physically exported out of India. The lower authority erred in coming to the conclusion that the appellant had colluded with the exporter in not physically exporting the goods and in giving leverage for claiming drawback fraudulently. For the reasons indicated above, the order of the lower authority is not sustainable in law and also on facts. The penalty on the appellant is thus set aside. The impugned order is modified in so far as it relates to the appellant."
2. The contention of the Revenue is that as per the Customs Manual, the Superintendent of Customs is the supervisory officer and he cannot escape his liability in case the appellant was not actually exported the goods. The contention is that in the present case, the evidence on record shows that no goods were exported and the drawback cases were allowed to the exporter, hence, the respondents were liable for penalties.
3. The contention of the respondents is that the show-cause notice was issued to the exporter as well as to the CHA and no show-case notices were issued to the respondents. Subsequently, an Addendum was issued to the respondent as co-noticee. The submission of the respondents is that as per the show-cause notice, the shipping bills were marked by present respondents to the Inspect of Customs. The Inspector of Customs examined the goods and then allowed the goods under respective bills of exports to cross the Border. It is also submitted that even in the adjudication order, the only finding is that being a supervisory officer, he cannot escape the liability and there is no evidence on record showing any collusion of present respondents with the exporter. Therefore, the impugned order is rightly passed.
4. I find that the Revenue relied on the Customs Manual to say that the present respondents are the supervisory officers and examination of goods is to be done under their supervision. No doubt, the Customs Manual says so but the allegation in the show-cause notice is that the present respondents marked in the shipping bills to concerned Inspector as the Inspector examined the goods and allowed the same to cross the Border. This fact is narrated in the show-cause notice at internal page 3.
4. Further I find that even in the adjudication order, the only finding is that the supervisory officer cannot escape his liability. There is no evidence on record to show that there is any collusion between the present respondents and the exporter. In the circumstances, I find no infirmity in the impugned orders. All the appeals are dismissed.
(Dictated and pronounced in the open Court) Sd/ (S. S. KANG) VICE PRESIDENT mm 4 Cus.Appeal Nos.44,55,65,56 & 61/09