S.S. Sekhon, Member (T) - (1.)THE appellant is an officer of the Central Excise & Customs Department. At the material time, he was working at Kandla Custom House, as a Preventive Officer and was posted in the Bonded Store Department from 1-4-1999. It appeals that one Shipping Bill was filed by M/s. Parkson Brothers for supply of Bonded Stores e.g. liquor, cigarettes etc. for a vessel M.V. Rahmi Pak for which one M/s. Bayland Shipping Agency was ac-tine as Agents. M/s. Parkson Brothers were having a Bonded Warehouse. It appears that the said vessel sailed from Kandla Port on 2-4-1999 and the Export General Manifest (EGM) was filed by the Shipping Agent on 6-4-1999. However, the Shipping Bill of M/s. Parkson Brothers to have not supplied bonded ship stores was not filed along with the EGM, & was not part of the EGM. THErefore EGM was not accepted by the concerned clerk. Pursuant to this letter dated 12-4-1999 from the Shipping & Forwarding Agent, a fax from the master of vessel MV Rahmi Pak of not having received or signed any Shipping Bill or invoice issued by M/s. Parkson Brothers for the said ship stores with regard to Shipping Bill F/730 dated 1-4-1999 and die contents of that Shipping Bill was never taken onboard the exact vessel which had obtained Port Clearance on 31-3-1999. Pursuant to this, enquiries were made and a Show Cause Notice dated 7-10-1999 inter alia served on this appellant, on the charge that the appellant in his capacity as the Preventive Officer, deliberately and with fraudulent intention, misrepresented, misstated and suppressed certain facts as regards the shipment made vide the said Shipping Bill of ship stores and for that act, the officer was charged to be liable for penalty under Section 112(a) and (b) of the Customs Act, 1962.
(2.)The Notice was contested by the appellant on facts and in law and he requested for cross-examination of various persons. Cross-examination of only the investigating officers Shri H.P. Pandya, Superintendent of Customs, and a few Panchas were granted and the request for cross-examination of other persons was refused. The Commissioner, after considering the matter, issued the impugned order inter alia imposing a penalty of Rs. 50,000/- under Section 112(a) and (b) of Customs Act, 1962 on the present appellant. Hence this appeal.
It is submitted that the procedure for warehousing is as given in the Customs Preventive Manual:

3. Control over the Warehouse.

(a) The private warehouses shall be under double locks i.e. one lock of the Customs House and the other of the licensee. The Customs House lock should be of Godrej's strong enough and of reasonably secured size with double keys purchased by the Preventive Department at the expense of the licensee. On no account should the same lock be brought into use again if it has once been returned to the licensee. The duplicate keys of Customs lock shall be retained in the Customs House Treasury and those in use shall be kept in the custody of Bond Superintendent for issue, as and when required by the preventive officers deputed for work in the warehouse. Their issue shall be acknowledged in a special register and the officer concerned shall be responsible for the due return of the keys on the same day to the Bond Superintendent, if before 6 p.m or to such other officer as authorised by Assistant Collector (Preventive) if after 6 p.m. In no case should the keys be taken home by the officer neither should the keys pass out of the officer's neither should the keys pass out of the Officer's hand whilst in his charge. In respect of the keys required before 10 a.m the Bond Superintendent shall arrange to send the keys to the authorised officer on the previous evening along with the register. Keys received by the authorised officer after office hours and not reissued shall be forwarded by the authorised officer on the following day to the Bond Superintendent along with the register at 10 a.m. The authorized officer shall be responsible for the custody of the keys entrusted to him and for obtaining a receipt for the keys issued.

(3.)A reading of the abovesaid provision would indicate that the bonded private warehouse under the Customs Act, 1962 are to be kept under double lock system and one of the keys has to be kept in the custody of the department. The present order arrived, along with the submissions as made by the ld. D.R. could not explain how the key which was required to be in the possession of the Superintendent in Charge (bond) was in the admitted custody of Kishore Chada, as staled by him. The removal of the stores from the Bond has to be established along with the complicity of the person who provided the Customs key to the lock of the warehouse and the same can be established only after cross-examination as sought by the appellant of all the persons is brought on record. Since, it appeals at this prima facie stage that the removal of the goods from the Bonded Warehouse cannot be established to be in knowledge of appellant. Without testing by cross-examination to establish the performance of duty cast on the Customs Superintendent in Charge, Bond or other officers who were required to keep the custody of the Customs key to the lock of the warehouse cannot bring the charge of removal of duty free goods only on basis of the Shipping Bill dated 1-4-1999. It could have been removed earlier later and the Shipping Bill could be a ploy to cover the illicit removal. The appellant has contended and this penalty arrived at to be suffering from, vice of denial of natural justice by the refusal of the cross-examination. The view that we have arrived at we would agree with this submission and would set aside this order and remit the matter back for readjudication of the penalty imposed. While conducting the remand proceedings, the ld. Adjudicator would also keep in mind the submissions to be made by the appellant, as regards the imposition of penalty on Inspector/Preventive Officer by an adjudicating authority and the jurisdiction for the same, especially in view of the provisions of Section 155 of the Customs Act, 1962 in this regard of the complicity on proper officer of Customs as to the protection enjoyed by the proper officer under the provisions of Section 155 of the Customs.