1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CUSTOMS APPEAL (L) NO. 48 OF 2009 Commissioner of Customs (EP) .. Appellant V/s P.D. Manjrekar .. Respondent Mr. R.V. Desai, Senior Advocate with Mr. Rohit Pardeshi for the appellant. Mr. Sujay Kantawala with Ms. Barsha Parulekar for the respondent. CORAM : F.I. REBELLO & D.G. KARNIK, JJ. DATE : 27TH AUGUST 2009 P.C. : 1. The respondent was issued a show cause notice. In para 54 of the show cause notice, it was specifically set out as under:- “Manjrekar has thus abetted with Subhash Dubey in exporting the goods, which are liable to confiscation under section 113(1) of the Customs Act, 1962 rendering himself liable to penalty under section 114(iii) of the Customs Act, 1962.” 2. On behalf of the appellant, the learned counsel draws our attention to 2 para 63 of the show cause notice wherein it is observed as under: “Therefore Mohammed Wasim Batliwala, Mohammed Irfan, P.D Manjrekar, CT Jadhav and Subhash Dubey, by their act of commission and omission have rendered the goods liable for confiscation under section 113(1) of the Customs Act, 1962 and also have rendered themselves liable for penal action under section 114(iii) of the Customs Act, 1962 in an attempt to defraud the public exchequer to the extent of Rs. 6,70,678/-.” 3. From the adjudication proceedings in which penalty was imposed on the respondent herein, the respondent has preferred an appeal before the Tribunal. The learned Tribunal while hearing the appeal placed reliance in respect of another show cause notice which was served on the respondent herein in similar circumstances. The learned Tribunal quoted a judgment of the Tribunal in the earlier case where a finding had been recorded that the respondent herein had no knowledge and accordingly dismissed the appeal. 4. At the hearing of this appeal, the learned counsel for the appellant draws our attention to section 114(3) of the Customs Act to point out that this is a case of omission and as such the question of knowledge would not arise. To that extent, he submitted that the earlier judgment of the Tribunal, 3 which was affirmed by this Court in Customs Appeal No.20 of 2008 in the case of Commissioner of Customs (EP) v. P.D. Manjrekar, decided on 9th July 2008 would be of no effect. 5. We have heard the learned counsel. Though in para 63 of the show cause notice the expression “acts of omission and commission” has been referred to, insofar as the respondent herein is concerned in para 54 the respondent was specifically informed that the charge against him is of abetment. Once it is a case of abetment, it was the appellant who had to prove the knowledge on the part of the respondent herein. 6. Considering the finding of fact recorded by the learned Tribunal, in our opinion, the questions of law as framed would not arise and consequently the appeal is dismissed. (D.G. KARNIK, J.) (F.I. REBELLO, J.)