Central Administrative Tribunal - Bangalore
Sanjay Kakkar vs Central Board Of Indirect Taxes & ... on 21 July, 2022
1 OA.No.170/00182/2021/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH
ORIGINAL APPLICATION NO.170/00182/2021
DATED THIS THE 21st DAY OF JULY, 2022
CORAM:
HON'BLE SHRI SURESH KUMAR MONGA, MEMBER (J)
(On video conference from Central Administrative Tribunal, Chandigarh
Bench, Chandigarh)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
(On video conference from Central Administrative Tribunal, Bangalore
Bench, Bangalore)
Sanjay Kakkar,
(Assistant Commissioner of Central Tax)
Bengaluru (North) GST Commissionerate
HMT Bhavan, Bellary Road,
Ganganagar,
Bengaluru - 560032. ....Applicant
(By applicant in person - through video conference)
Vs.
1.The Principal Commissioner of Customs
(Disciplinary Authority)
Chennai- VIII Commissionerate,
Custom House, No.33- Rajaji Salai,
Chennai - 600001.
2.The Chairman
Central Board of Indirect Taxes and Customs (CBIC)
North Block,
New Delhi - 110 001. ...Respondents
(By Shri S Sugumaran, Senior Panel Counsel - through video conference)
O R D E R (ORAL)
PER: SURESH KUMAR MONGA, MEMBER (J)
2 OA.No.170/00182/2021/CAT/BANGALORE The applicant herein was served with a Charge Memorandum dated 20.05.2016. Pursuant thereto, a detailed inquiry was conducted by the Inquiring Authority. While submitting the inquiry report on 10.07.2018, the Inquiring Authority found that the charges framed against the applicant herein are not proved. The Disciplinary Authority, however, while recording a dissenting note on 21.02.2019 proposed to disagree with the Inquiring Authority's report and, therefore, the applicant herein was served with a notice under Rule 15(2) of the CCS (CCA) Rules, 1965 along with a copy of the inquiry report. The applicant was given 15 days' time to submit his representation. He, however, could not submit his representation within the said stipulated period of 15 days and requested the Disciplinary Authority to grant some more time to submit his representation. While accepting the applicant's request, the period to submit the representation was extended and, accordingly, within the extended period of time, the applicant had submitted his representation on 22.03.2019. He was also afforded an opportunity of hearing by the Disciplinary Authority.
2. After affording an opportunity of hearing to the applicant herein and perusing the detailed representation submitted by him, the Disciplinary Authority finally agreed with the report of the Inquiring Authority. The observations given by the Disciplinary Authority in his communication dated 17.07.2019 addressed to the Director General of Vigilance (CBIC), New Delhi are reproduced here as under:-
"XX. From the foregoing, as concluded by the Inquiry Officer, I find from the facts of the case that the alleged revenue loss was due to reasons other than assessment. The Charged Officer in his role as an assessment officer cannot be thrusted for liabilities and lapses, omissions and commissions of the examination officials, who have already accepted their lapses and have been duly punished in departmental proceedings.3 OA.No.170/00182/2021/CAT/BANGALORE
XXI It has already taken 8 long years of mental agony to the Charged Officer in vigilance action. The proceeding is for the second time for a different period. A Final Order has already been passed earlier in the favour of the Charged Officer after a detailed Inquiry, following due process of law in identical circumstances, during the contemporaneous period, for similar goods and for the same importer.
XXII I note that the argument of the C.O. has immense force that the appointment of I.O. and P.O. was done without addressing the issues that went to the root of the matter like the mandatory compliance of Section 155 (2) of the Customs Act and as such it vitiates the Charge Memo at the outset and makes it non-est in the eyes of the law. I agree with the report of Inquiry Officer now after hearing him in person in this case. The Show Cause Notice in the case of Mis-declaration, non- declaration and undervaluation of goods issued to the importer for the alleged revenue loss does not even hint at any culpability, omissions or commissions on the part of the assessing officer i.e. Charged Officer and hence the proceedings cannot sustain.
XXIII In para 7.0 of the Statement of Imputation forming Annexure II of the Charge Memorandum, the Disciplinary Authority conceded the fact that there was no revenue impact due to the alleged mis-classification of the imported goods, as the rate of duty within the same tariff (tariff heading adopted by the Charged Officer versus the tariff heading sought to be adopted in the Charge Memo) was same. In the same Para, it is also accepted by the then Disciplinary Authority that any discrepancy on account of concealment of goods was not within the purview of the Charged Officer but within the purview of the Shed Examination officials only. The Examination Officers posted in Docks were required to refer the Bill of Entry back to the Assessing Group with a detailed examination report, as per procedure. It is also accepted by the Disciplinary Authority that the value of the goods assessed by the Charged Officer on the basis of value of contemporaneous imports was also correct and acceptable. Based on the irrefutable documentary evidence and legal support furnished by the Charged Officer I am of considered opinion that the discharge of duty by the Charged Officer was a considered one and conscious. There was no recklessness or negligence involved on his part in the act of assessment of the imported goods.
XXIV On the issue of classification of goods, data- quality and the issue of first-check assessment, I notice that the classification adopted by the Charged Officer was reasoned out as per the Interpretative Chapter and Section Notes of the Tariff and further that he has provided credible explanation and reasoning for the same during the Inquiry as well as during the Personal Hearing. There is factual evidence on record that the same classification which was adopted by the Charged Officer was recommended by the CRA-CAG in respect of identical goods and also that the same classification of the imported goods continues till date. Identical clearances across the country by different empowered officers have been assessed under the same classification as was adopted by the Charged Officer. In any case, it would be illegal to single out one officer across the country for identical discharge of duty. I agree with the 4 OA.No.170/00182/2021/CAT/BANGALORE Inquiry Officer in his observation that this is a case of smuggling by mis- declaration for which assessment officials, including the Charged Officer cannot be linked.
XXV. The Charged Officer has tabulated the declared description of imported goods in his reply to the Report under Rule 15(2) of the CCS(CCA) Rules wherein it is evident that there was no deficiency in the data-quality of declared descriptions warranting any query to the importer or assessment under first-check basis. The goods were not of any new nature or imported for the first time for which duty could not be quantified and hence there was no need to assess on first-check basis. On the contrary, it is felt that a query to the importer or assessment of first check basis would have been an abuse of power by the assessing authority. The denial of notification benefit claimed by the importer, hitherto not done by any of the predecessors of the Charged Officer which did not lead to shortage but which led to increase in revenue. It indicates his emphasis on revenue-centric parameters and also that he did not discharge his duty mechanically but in a conscious and reasoned manner. I agree with the Charged Officer when he states that this might be the first case ever where a reasoned-out extra collection of duty is being viewed as a vigilance case for major-penalty proceedings, I hold this single reason as a distinguishing feature w.r.t other officers who discharged duty in similar capacity for imports covered under the same SCN. Whilst other similarly placed officers who assessed similar imported goods referred in the same SCN were Chargesheeted and opted to accept their lapse and were duly punished in vigilance proceedings to cut down the time in disciplinary action but in the instant case there is an officer who chose for proper enquiry being confident that he has done nothing wrong and faced the enquiry for last 8 years and I hold that the Charged Officer has emerged clean by proving a proper discharge of duty through a procedure established by law.
XXVI. Based on the elaborate findings of the Inquiry Report, his reply to the Report under rule 15(2) of the CCS(CCA) Rules and my personal assessment of the Charged Officer during the Personal Hearing I am in complete agreement with the conclusions of the Inquiry Report. I lay special emphasis on the fact that there is nothing on record to question the Conduct of the Charged Officer and to declare him unbecoming of a government servant. There existed no attending circumstances for the same as only an interpretation of law was involved. None of the conditions listed in CVC circular No. 12/10/2016 dated 24.10.2016 dated in F.No.007/VGL/054 are attracted in the case of the Charged Officer and the relied upon judgments in this regard as well as the spirit of good governance and good HR practices weigh over- whelmingly in favour of the Charged Officer. Even in Instructions issued by the DGoV (CBEC) in F. No. V.500/39/2015 dated 04.2015 it has been remarked in parametria circumstances that -
"... adjudication/appellate order is not required to be referred by the Review Committee for further vigilance scrutiny merely on the ground of it being an anti-revenue order or having some legal infirmities (for which review and appellate remedy is available), unless there are genuine reasons to doubt the bonafides of the decision or where the order shows 5 OA.No.170/00182/2021/CAT/BANGALORE a conspicuous violation of the procedures involved or recklessness, etc., as per the above criteria laid by Hon'ble Supreme Court in the KK Dhawan's judgment and as circulated by CVC in Circular No. 39/11/07 dated 01.11.2007. It is expected that senior officers in the field, given their vase experience, would be able to distinguish between the orders warranting scrutiny from vigilance angle and those which do not."
XXVII. The above criteria in the CVC Circular as well as the instructions issued by DGoV (CBIC), citing the Supreme Court Order, are squarely applicable to interpretative discharge of duty in assessment related work and weigh in favour of the Charged Officer. Clearly no case exists for the same reasoning as in the earlier identical vigilance proceedings against him, where the same vigilance formation had discussed these instructions in detail and passed a Final Order dropping the charges. In identical circumstances as such a different contrary view cannot be taken by the same vigilance formation.
XXVIII. In the interest of justice, where the officer has suffered mental agony for last several years, it is recommended that this case may be taken on priority for 2nd Stage advice for dropping all the charges against C.O. Shri Sanjay Kakkar, Appraiser.
XXIX Copies of all the required documents in annexed List-A as per procedure are appended herewith for necessary action."
3. On perusal of the record, we found that the Disciplinary Authority vide aforesaid communication dated 17.07.2019, by making an observation that the applicant has suffered mental agony for last several years, recommended that his case may be taken up on priority for 2nd stage advice for dropping all the charges against him.
4. However, the matter still remained pending with the respondents, which gave a cause to the applicant to invoke the jurisdiction of this Tribunal by way of filing the present Original Application making therein a prayer for quashing the vexatious proceedings pursuant to charge memorandum dated 20.05.2016. An alternate prayer has also been made for issuance of a direction to respondents to finalise the proceedings pursuant to aforesaid charge memorandum within a time frame.
5. Shri S Sugumaran, learned counsel for the respondents, at the very outset, pointed out that the matter was pending consideration before the 6 OA.No.170/00182/2021/CAT/BANGALORE respondent authorities pursuant to communication dated 17.07.2019 and the applicant came to be promoted as Group 'A' officer on 26.09.2019 and since his Disciplinary Authority has changed because of his said promotion, therefore, the matter has now been placed before the competent Disciplinary Authority to take the decision in the matter.
6. In the aforesaid changed circumstances, we are of the considered view that the ends of justice would be met if the present Original Application is disposed of with a direction to the competent Disciplinary Authority to decide the matter within a time frame.
7. Accordingly, the Original Application is disposed of with a direction to the competent Disciplinary Authority to decide the whole issue and pass a reasoned and speaking order in accordance with law. Needless to observe that the applicant shall also be afforded an opportunity of hearing before taking such a decision. The whole process shall be concluded within a period of 06 weeks from the date of receipt of a certified copy of this order.
8. There shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (SURESH KUMAR MONGA)
MEMBER (A) MEMBER (J)
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