Central Administrative Tribunal - Delhi
Vinod Kumar Ahirwar vs M/O Finance on 27 May, 2025
Item No. 48/C-1 1 OA No. 1611/2021
Central Administrative Tribunal
Principal Bench, New Delhi
O. A. No. 1611/2021
Reserved on: 06.05.2025
Pronounced on: 27.05.2025
Hon'ble Mr. Justice Ranjit More, Chairman
Hon'ble Mr. Rajinder Kashyap, Member (A)
Sh. Vinod Kumar Ahirwar
701, MantovaMahagun Moderne
Sector 78
Noida 201301
... Applicant
(By Advocate: Mr. M. K. Bhardwaj)
Versus
1. Union of India
Through Ministry of Finance
Department of Revenue, Govt. of India
North Block, New Delhi, 110001 Respondent
No. 1
2. The Chairman
Central Board of Excise & Customs
CBIC, North Block
New Delhi-110001 ...Respondent No.
2
3. The Member (P&B)
Central Board of Excise & Customs
CBIC, North Block
New Delhi-110001 ...Respondent No.
3
4. The Commissioner of Customs (Admn.)
15/1, Strand Road, Customs House,
Kolkata ...Respondent No. 4
(By Advocate:Mr. R. K. Jain)
Item No. 48/C-1 2 OA No. 1611/2021
ORDER
Hon'ble Mr. Rajinder Kashyap, Member (A):-
By way of the present O.A. filed u/s 19 of the A.T. Act, 1985, the applicant, in para 8 of the O.A., has prayed for the following reliefs: -
"i. To quash and set aside the order dated 15.10.2019 passed by the Appellate Authority;
ii. To quash and set aside the punishment order dated 30.03.2009 passed by the Disciplinary Authority and direct the Respondents to release all consequential benefits including arrears of salary;
iii. Quash and set aside IO report dated 04.10.2006 and charge memo dated 04.10.2002;
iv. To direct the Respondents to restore Applicant's original seniority and to promote applicant from the date when his immediate junior was promoted.
v. To allow the OA with costs;
vi. Any other relief that this Tribunal may deem fit."
FACTS OF THE CASE
2. The applicant submits that on 05.01.2002, while serving as an Appraiser at the Kolkata Customs House, he cleared seven manual shipping bills (EF-103, 108, 110, 111, 114, 116, and 118) related to five consignments of ball pens and two consignments of side wheels under the drawback scheme, in accordance with the prescribed procedure. Five percent of the total consignment was examined, in compliance with the directions of the Group Export Appraiser, Ms. Champa Mukherjee. Additionally, representative samples from one consignment were drawn, as per the instructions, and forwarded to the group for determining the Item No. 48/C-1 3 OA No. 1611/2021 applicable drawback. Following the examination by the applicant, Preventive Officer Mr. Pradeep Juneja stuffed the goods into the containers, validated the quantity, and endorsed the same on all the shipping bills. Furthermore, the mate receipts confirmed that the number of packages was consistent with the declaration made by the concerned exporter. The goods were received on board in full quantity. Subsequently, based on intelligence received by the Special Investigation Branch of Kolkata Customs House, the consignment was intercepted at Visakhapatnam, where a 100% examination was conducted from 13.01.2002 to 15.01.2002. It was alleged that the exporters had over- invoiced the consignments with the intent to claim a higher drawback. It was also alleged that there was a misdeclaration regarding the number of packages. Contrary to the declared 1,145 packages (600 packages of ball pens and 545 packages of side wheels) under the seven shipping bills, there was a reported shortage of 420 packages.
3. Commissioner of Customs issued a charge memorandum dated 04.10.2002 proposing to hold an inquiry under Rule 14 of the CCS (CCA) Rules, 1965 against the applicant. The Articles of Charge are reproduced as under:-
"The Applicant in collusion with the Exporter, deliberately and with ulterior motive acted upon allowing consignments of Ball Pens, Side Wheels covering 7 shipping bills for export under Drawback claim without observing the requisite procedure/formalities "despite having prior knowledge" that the subject consignments contained junk goods or were of lesser quantity or abnormal value (Article-I).
Item No. 48/C-1 4 OA No. 1611/2021 ii. That the Applicant did not take precaution or safeguard in examining the packages (Article-II).
iii. The Applicant did not take further action after having known that100% examination was required to be carried out. (Article III).
iv. That the Applicant bypassed the regulations failed to maintain absolute integrity and devotion to duty thereby contravening the provision of Rule 3(1) (i) (ii)
(iii) of the CCS (Conduct) Rules,1964 (Article-IV)."
4. The applicant, vide communication dated 11.10.2002, replied to the said charge memorandum and requested that the allegations be dropped, as they were incorrect inasmuch as the applicant had acted with due caution and discharged his duties in compliance with the prescribed procedures and rules. Thereafter the IO and PO were appointed to conduct the departmental inquiry proceeding. The Presenting Officer submitted his brief on 18.10.2005 (Annexure-A/5), subsequent to which the applicant submitted his defence statement on 28.12.2005 (Annexure-A/6). Thereafter, the Inquiry Report in the subject matter, dated 04.10.2006, was served on the applicant on 15.01.2007, wherein the findings of the Inquiry Officer (IO) with respect to each of the charges are as follows:
"i. Article I & Article II- The said report categorically exonerated Applicant of the charge that he had "prior knowledge of the subject goods and joint hand with exporters in getting the consignment of ball pens and side wheel exported through Kolkata Port. The report finds the applicant guilty for selectively examining 5 % of the packages by failing to suspect the genuineness of the declaration of the quantity and value of the ward. The Inquiry Officer holds the charges in Article I partially proved and charges under Article II proved against the applicant.
ii. Article III - While specifically noting that there was no expert opinion on the value and description of the side wheels and the ball pens, which was also Item No. 48/C-1 5 OA No. 1611/2021 mandated by the Appraiser at Visakhapatnam and noting that no alert notice was issued to the applicant at hand, held the charges in Article III proved against him, despite the absence of any evidence against the applicant.
iii. Article IV - The IO without taking the relevant evidence and rules into consideration held that Applicant did not take precaution to safeguard the interest of the revenue and held that the charges in Article IV were proved against the applicant."
5. The applicant vide representation dated 28.03.2007 (Annexure-A/14) raised the following grounds on account of which the findings of the IO would be untenable:-
"i. The IO while deciding charges I and II, took into consideration, imputations regarding presence for ladies dress and garments or stuffing of worthless soiled and old garments. The said imputations effectively amounted to addition of charges since the same did not find any mention in the initial charge memo of 04.10.2002.
ii. The so-called independent witnesses who were present during the 100% examination report at Visakhapatnam, were never examined during the process of inquiry.
iii. The IO failed to consider Chapter -I, Para 22 of the CBEC Customs Manual which categorically states that "the staff at docks/cargo complex/ICDs examine the goods meant for export on percentage basis and allow shipment if there are no discrepancies/misdeclarations, unless prohibitions and violations come to light"
iv. With respect to the quantity and shortage of packages, the 10did not take into consideration valuable evidence in favour of the applicant. The deposition of the defence witnesses i.e. the Preventive Officer (Mr. Pradeep Juneja) and the Group Appraiser (Ms. Champa Mukherjee) had confirmed that as per the orders issued, only 5% selective examination had to be carried out in relation to the subject consignment.
Item No. 48/C-1 6 OA No. 1611/2021 v. In relation to the 5% subject goods so examined by the Applicant, the same were selected on a random basis, as per the prescribed procedure. Further, the preventive officer, in compliance of the prescribed procedure under Public Notice No.79 of 98 endorsed the packages actually stuffed and the bottle seal number. There were other consignments of ball pens which were cleared by some other set of officials. The Visakhapatnam report fixed ball pen value Rs.2.50 each against the declared MRP of Rs. 8/-. As per Mahazars (panchnama), the concord brand ball pens packed in unit packs of 10 each were indicated with MRP of Rs. 80/- per pack or Rs. 8/-each. The mentioning of MRP as above in Mahazar is related to ball pens contained in container No. CRXU 2066952, which was not examined by CO.
vi. Even as per the SIB report dated 19.02.2002, which was a document relied upon by the Respondent Department, the quantity of goods declared in the shipping bills tallied with individual packages in the packing list.
vii. In addition to the above, the Mate Receipts (which is a document endorsed by the Shipping Agent) confirmed that the quantity of goods were in consonance with the declaration made in the corresponding shipping bills by the Exporter. The said goods, in full quantity, were also received 'on board'.
viii. The Mahazar i.e. the inventory for the 100% examination report was not admissible in as much as the Mahazars did not provide for tally of the containers, carton wise to ascertain the overvaluation of the quantity. Further, even going by the Mahazar the entire operation for ascertaining the quantity of each package would have worked out to approximately 20seconds per package, which is not possible.
ix. With respect to valuation of goods, it was categorically submitted that the valuation of the goods was not carried out asper the requirements of Section 14 Customs Act, 1962, which required local market enquiry to be carried out at the place of export i.e. Kolkata. For the purpose of valuation of the ball pens, only verbal enquiry was made from a single stationary shop.
Item No. 48/C-1 7 OA No. 1611/2021 x. It is undisputed that even as per the Visakhapatnam Appraiser, the values of the subject consignment goods had to be carried out by the Kolkata Customs House, which was not complied with.
xi. Further, apart from the fact that the Group Appraiser and the Assistant Commissioner also having confirmed and approved the declared value and drawback claim for the goods in question, the Applicant placed on record several shipping bills of similar/identical value during the contemporaneous period."
6. The aforesaid proceedings culminated into awarding the major punishment vide order dated 30.03.2009 reducing the applicant's pay by three stages--from Rs. 16,170 + 4,800--in the time scale of pay of Rs. 9,300-34,800, for a period of three years with effect from April 2009. According to the applicant, this was done without appreciating the facts of the case, while discarding relevant evidence in favor of the applicant and considering irrelevant aspects. On 12.05.2009 (Annexure-A/15), the applicant filed an appeal against the aforesaid impugned order dated 30.03.2009 before the Appellate Authority. Vide order dated 11.07.2011, the Appellate Authority confirmed the penalty imposed upon the applicant by the order dated 30.03.2009, thereby rejecting the aforesaid appeal.
7. Aggrieved by the order of the Appellate Authority, the applicant preferred O.A. No. 3667 of 2011 before this Tribunal on various grounds. Vide order dated 12.05.2016, this Tribunal disposed of the said O.A. on the limited point of non-supply of the UPSC's advice to the applicant, thereby remanding the matter back to the Appellate Authority to decide the matter afresh after supplying a copy of the UPSC's advice.
Item No. 48/C-1 8 OA No. 1611/2021
8. On 08.08.2016, the applicant submitted his representation/appeal against the punishment order dated 30.03.2009, the rejection of the appeal vide order dated 11.07.2011, and the advice of UPSC dated 07.06.2011, challenging them on various grounds previously raised, as well as on the following additional grounds:--
"i. That the department did not undertake the local market enquiry for valuation as mandated under Section 14 of the Customs Act;
ii. That the group appraiser had assessed all the shipping bills and confirmed the value declaration, subsequent to which 5% examination of the subject examination was ordered.
iii. That during the examination of the packages, there was no MRP printed on the packages and therefore the finding of the 10 to the extent that the price of Rs 8 was in relation to another charged officer.
iv. The 10 failed to consider the 50 contemporaneous evidence which indicated similar value as the declared value of the subject consignment.
v. The Preventive Officer, Mr. Pradeep Juneja also confirmed the validated quantity of the shipping bills.
vi. The Appellant also produced copies of the mate receipts which show that the number of packages were as per the declaration made in the subject shipping bills."
9. Vide order dated 15.10.2019, the Appellate Authority, without appreciating the grounds mentioned in the said representation/appeal, passed the impugned order bearing No. 22/2019, rejecting the same and confirming the Order-in-Original imposing the major penalty of reduction in pay for a period of three years. The said Item No. 48/C-1 9 OA No. 1611/2021 order was received by the Applicant on 09.12.2019. Hence, this O.A. SUBMISSIONS MADE BY THE APPLICANT
10. The applicant seeks to challenge the impugned order inter alia on the following grounds:
10.1 The Appellate Authority failed to consider that there was no evidence indicating that the applicant did not discharge his duties in accordance with the prescribed procedure;
10.2 Once it was held that the primary charge of ulterior motive under Article I of the charge memo dated 04.10.2002 was not held proved by the Inquiry Officer, the subsequent articles of charge could not have been held to be proved;
10.3 In the impugned orders, neither the Appellate Authority nor the Disciplinary Authority nor the Inquiry Officer considered that the applicant had acted in accordance with the instructions of the Group Appraiser that only 5% examination of the goods was to be carried out. This was categorically inscribed on the shipping bills as well. This was further confirmed in the depositions of the Preventive Officer (Mr. Pradeep Juneja) and the Group Appraiser (Ms. Champa Mukherjee); 10.4 The respondents, in the impugned orders, did not consider that the Preventive Officer as also the Group Appraiser had confirmed and validated that the quantity of goods in the subject consignment was found to be in order;
10.5 The mala fide action of the respondents became clear from the fact that, despite the involvement of Item No. 48/C-1 10 OA No. 1611/2021 the aforesaid Preventive Officer and the Group Appraiser, selective action was taken only against the Applicant herein;
10.6 The examination of goods was carried out by the Examiner under the Applicant's supervision exactly as per the directions of the Group Assessing Officer (AO). Five percent of the packages, as ordered by the AO for examination, were selected and opened.
The cargo could not be doubted or suspected to be less in quantity as during the examination, the declared quantity in individual packages tallied with the packing lists. As many as 57 cartons/packages were examined. In no case were goods found to be less inside the packages. Quantities on remaining packages were found to be mentioned/stenciled. The shortages at Vishakhapatnam were found in the total number of packages and not in individual packages. Therefore, the applicant cannot be held responsible for the same;
10.7 The Respondents in the impugned orders failed to consider that even as per the SIB report dated 19.02.2002, which was a document relied upon by the Respondent Department, the quantity of goods declared in the shipping bills tallied with the packing list;
10.8 The Respondents in the impugned orders failed to consider that, in addition to the above, the Mate Receipts (a document endorsed by the Shipping Agent) confirmed that the quantity of goods was in consonance with the declaration made by the Exporter. The goods were also received in full ―on board.‖;
Item No. 48/C-1 11 OA No. 1611/2021 10.9 The Respondents in the impugned orders failed to consider that the 100% examination report dated 24.01.2002 was allegedly done in the presence of two independent witnesses, i.e., Shri Barla Venkata Suresh Babu and Shri Podasseril Vishwanath Dinesh, who were never examined during the inquiry;
10.10 The impugned orders failed to consider that, as mandated by Section 14 of the Customs Act, 1962, the local market enquiry with respect to the subject consignments is to be carried out at the place of export, which was not complied with;
10.11 The Appraiser at Visakhapatnam who conducted the market enquiry also categorically stated that the pricing of the subject goods would have to be verified by the Kolkata Customs House via expert opinion. However, the same was never carried out by the Respondent Department;
10.12 In the impugned order, the respondents had failed to appreciate that the SIB report dated 19.02.2002, relied upon by the Respondent Department, categorically mentioned that in the case of side wheels, the sample would have to be verified with respect to the description of the goods for drawback purposes;
10.13 Further, it is to be noted that inventories of goods were made in the absence of export documents; therefore, it is not possible to correlate the goods with respective shipping bills and confirm any alleged mis-declaration;
10.14 In the case of the market enquiry of side wheels, the same was conducted two days prior to the goods being subjected to examination, thereby Item No. 48/C-1 12 OA No. 1611/2021 confirming that there could be no correlation between the market report and the actual goods; 10.15 The Department did not take into account that the applicant had placed on record various contemporaneous evidences/bills with respect to the value assigned to the same goods during the same period, which is also envisaged under Rule 4 of the Customs Export Valuation Rules, 2007; 10.16 The Appellate Authority did not consider that there were other consignments of ball pens which were cleared by some other officials. The Visakhapatnam report fixed the ball pen value at Rs. 2.50 each against the declared MRP of Rs. 8/-. As per the Mahazars (panchnama), the Concord brand ball pens packed in unit packs of 10 each were indicated with an MRP of Rs. 80/- per pack or Rs. 8/- each. The mention of MRP as above in the Mahazar relates to ball pens contained in container No. CRXU 2066952, which was not examined by the applicant. Thus, the Appellate Authority has, in the impugned order, taken irrelevant evidence into consideration;
10.17 The Inquiry Officer, in his report dated 04.10.2006, failed to consider and acknowledge the relevant and crucial evidence in favour of the Applicant in the above-mentioned grounds. Despite the crucial evidence being brought on record in the applicant's representations and appeal dated 08.08.2016, the Disciplinary Authority and Appellate Authority failed to acknowledge or take the same into consideration;
10.18 The Inquiry Officer, on his own accord, added charges regarding the presence of women's Item No. 48/C-1 13 OA No. 1611/2021 garments and soiled clothes having no commercial value, although the same were not mentioned in the original charge-sheet;
10.19 The applicant was held guilty on the basis of extraneous charges, and the inquiry was influenced by the discovery of material not mentioned in the charge memo;
10.20 Despite raising the above-mentioned grounds in his detailed appeal dated 08.08.2016, the Appellate Authority failed to address or consider any of the said aspects. The Appellate Authority further failed to provide any reasons for rejecting the same; 10.21 The punishment orders dated 30.03.2009, UPSC advice dated 07.06.2011, and the final order of the Appellate Authority dated 15.10.2019 dismissing the applicant's appeal suffer from non-application of mind having failed to take into account the material evidence placed on record, causing gross and substantial injustice to the applicant herein; and 10.22 The punishment imposed upon the applicant has a cumulative, cascading, and chilling effect on all future benefits and increments to be received by the applicant.
SUBMISSIONS MADE BY RESPONDENTS
11. The Respondents filed their counter reply on 02.12.2021, stating therein that disciplinary proceedings under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 for imposition of major penalty were initiated against the Applicant for contravention of the provisions of Rule 3(1) Item No. 48/C-1 14 OA No. 1611/2021
(i), (ii), and (iii) of the CCS (Conduct) Rules, 1964. This was done through the issuance of a Memorandum of Charges of even number dated 01.10.2002, served on 04.10.2002, pursuant to the first stage advice of the Central Vigilance Commission vide reference no. V 526/4/2002 dated 17.09.2002.
12. The respondents allege that the charges against the applicant were that, while functioning as Appraiser at NS Dock on 05.01.2002, he deliberately and with ulterior motive allowed the clearance of consignments of ball pens and side wheels covered under seven shipping bills under drawback claims, without observing the requisite procedures and formalities. It was further alleged that he had prior knowledge that the subject consignments intended for export were short in quantity and/or of abnormally inflated value, thereby enabling the exporters to claim an inflated amount as drawback.
13. The respondents also allege that the applicant failed to show due diligence in conducting a proper and effective examination and neglected to take necessary precautions in examining the packages, which--after 100% re-examination at Visakhapatnam--were found to have misdeclared quantities and values, indicating an intent to defraud the Government exchequer. He also failed in his duty and responsibility by not undertaking 100% examination of the consignments, which had become essential in view of the aforementioned irregularities. Additionally, he failed to forward the shipping bills and related documents along with a factual written report to the Deputy/Assistant Commissioner (Export). He not only bypassed all the prescribed norms and regulations for the appraisal of Item No. 48/C-1 15 OA No. 1611/2021 export consignments but also failed to maintain absolute integrity and devotion to duty, thereby displaying conduct unbecoming of a Government servant, in violation of Rule 3(1) (i), (ii), and (iii) of the CCS (Conduct) Rules, 1964.
14. An intelligence-based investigation by the Special Investigation Branch (SIB) of the Custom House, followed by the interception of the consignments at Visakhapatnam Port and their 100% examination and inventory from 13.01.2002 to 15.01.2002--conducted by the officers of Visakhapatnam Customs and the SIB officers, in the presence of independent witnesses-- revealed that the consignments comprising ball pens and side wheels, against the seven impugned shipping bills and valued at ₹ 3,35,28,330/-, were shipped via Vessel M.V. Kota Vin Tang from Kolkata Port and were highly over-invoiced by the exporters with the motive of obtaining a huge drawback to the tune of ₹ 70,85,662.50.
15. The consignments were found to be misdeclared both in terms of quantity (number of packages) and value in order to avail a higher amount of drawback than entitled. The declared FOB value for the ball pens was ₹20.27 per piece, but the printed MRP was ₹8/- per piece (in the case of Concord brand ball pens, some of which--13 packages--were also found in the five impugned shipping bills), and the ascertained price of the pens was only ₹2.50 per piece, as determined by the Visakhapatnam Customs market enquiry. Similarly, the declared FOB value for the side wheels was ₹19.08 per piece, whereas the price determined through the same market enquiry was ₹2/- per piece.
Item No. 48/C-1 16 OA No. 1611/2021
16. Further, the number of packages declared in the seven shipping bills for ball pens and side wheels was 1,145, but inventory revealed only 725 packages, resulting in a shortage of 420 packages. Specifically, against the declared 600 packages of ball pens, only 276 were found; and against the declared 545 cartons of side wheels, only 446 cartons were found. The applicant, along with six other officers, was suspended on 22.01.2002 for the aforementioned irregularities, and the suspension was later revoked on 21.08.2002.
17. Following the applicant's preliminary reply dated 11.10.2002, wherein he denied and disputed the Articles of Charge, a Regular Departmental Inquiry was conducted to ascertain the veracity of the charges. The Inquiry Officer, after analyzing the facts of the case based on documentary evidence, examination of state witnesses, the Applicant's defence submissions, and the Presenting Officer's brief, arrived at the following findings, supported by his reasoning:
(i) The charges in respect of the 7 S/Bs relating to the export of ball point pens and side wheels attended by the applicant that:--
17.1 The applicant failed to take interest in proper and effective examination and also failed to take precaution or safeguard in examining the packages, which, after 100% re-examination in Visakhapatnam, confirmed misdeclaration of quantity and value with a view to defraud the Government exchequer by way of claim of excess drawback;
Item No. 48/C-1 17 OA No. 1611/2021
17.2 The applicant failed to undertake 100%
examination of the consignments in spite of the noticed irregularities;
17.3 The applicant failed to forward the S/Bs and related documents with factual written report to the Deputy Assistant Commissioner (Export) for further remedial measures; were substantiated against the applicant;
17.4 The charges that the applicant had fraudulently allowed export of ball pens and side wheels under 7 S/Bs either deliberately and with ulterior motive or had prior knowledge about less goods and over valuation or joined hand with exporter while allowing consignments of ball pens and side wheels are not substantiated;
17.5 The charges that the applicant not only by passed all the prescribed norms and regulations for appraisement of export consignments but also failed to maintain absolute integrity and devotion to duty and had displayed a conduct unbecoming of a Government Servant and thereby contravened the provisions of Rule 3(I)(i)(ii)(ii) of the CCS (Conduct) Rules, 1964 stand proved; and 17.6 The Commission was consulted and after due application of mind and on careful analysis of the Inquiry Officer's report and the case records vis-a-
vis the submissions made by the applicant, the Disciplinary Authority found that the IO's report is based on appraisal of evidences and facts in its proper perspective.
REBUTTAL TO THE SUBMISSIONS OF THE
RESPONDENTS
Item No. 48/C-1 18 OA No. 1611/2021
18. In response to the counter reply filed by the respondents, the applicant filed a rejoinder on 04.04.2022, wherein he vehemently denied the correctness of each of the charges framed and subsequently confirmed by the respondents. It is denied that the applicant failed to observe the requisite procedure or that he lacked diligence in the proper and effective examination of the subject consignment.
It is reiterated that not only was the applicant penalized based on irrelevant considerations, but the respondents also disregarded relevant evidence in the applicant's favour, indicating non-application of mind.
19. It is submitted that significant reliance has been placed on the 100% examination report. However, the so-called independent witnesses were never examined during the course of the inquiry; therefore, the allegations in the said report cannot be relied upon. It is denied that the goods were misdeclared or over-invoiced. It is submitted that the applicant followed the due procedure. Insofar as the prices of the ball pens and side wheels are concerned, the applicant placed on record several contemporaneous shipping bills of similar or identical value, which were not considered and were disregarded by the respondent without assigning any reasons.
20. Regarding the alleged shortage of packages, even as per the SIB report dated 19.02.2002, a document relied upon by the respondent department, the quantity of goods declared in the shipping bills tallied with the individual packages listed in the packing list. Additionally, the Mate Receipts (a document endorsed Item No. 48/C-1 19 OA No. 1611/2021 by the Shipping Agent) and the Preventive Superintendent Stuffing Order (PSSO--a customs stuffing details document from the Preventive Section) confirmed that the quantity of goods was in consonance with the declaration made by the exporter and that the said goods were also received in full ‗on board'. Notably, both these documents were relied upon in the Inquiry Officer's report, and their correctness has not been disputed by the respondents. It is submitted that, notwithstanding the CESTAT order, there exists crucial evidence in favour of the applicant which was disregarded by the respondents, as detailed herein below.
21. The applicant submits that the following contentions relate to allegations regarding the incident in question and are addressed collectively as follows:
(i) 5% examination of the subject consignment as per instructions - The applicant acted in accordance with the instructions of the Group Appraiser, which directed that only 5% of the goods (i.e., 57 packages in this case) were to be examined. Accordingly, the Examiner randomly opened and examined 5% of the goods from each shipping bill under the applicant's supervision and submitted his report, which was countersigned by the applicant. This was explicitly inscribed on the shipping bills. The same was further confirmed in the depositions of the Preventive Officer and the Group Appraiser.
(ii) Quantity of goods as per declarations - The
Appellate Authority summarily rejected the
Item No. 48/C-1 20 OA No. 1611/2021
applicant's contentions and supporting evidence without rendering any findings regarding the quantity of the subject consignment.
Additionally, neither the Disciplinary Authority nor the Appellate Authority considered the following evidence:
a. During their depositions, both the Preventive Officer and the Group Appraiser confirmed and validated that the quantity of the goods was found to be in order. The Preventive Officer also endorsed and signed the full number of packages in the relevant column of each shipping bill.
b. As per the SIB report dated 19.02.2002, the quantity of goods declared in the shipping bills matched the individual packages listed in the packing list.
c. The Mate Receipts and the PSSO confirmed that the goods were loaded in full on board, consistent with the exporter's declarations. Both documents were relied upon by the Inquiry Officer, and their authenticity has not been disputed by the respondents.
d. The 100% examination report dated 24.01.2002, allegedly conducted in the presence of two independent witnesses--
Shri Barla Venkata Suresh Babu and Shri Podasseril Vishwanath Dinesh--cannot be relied upon as these witnesses were never examined during the inquiry.
Item No. 48/C-1 21 OA No. 1611/2021
(iii) Quality and valuation of goods -
a. As mandated under Section 14 of the Customs Act, 1962, the local market enquiry should have been conducted at the place of export. This was not done for the subject consignments of ball pens and side wheels.
b. The Appraiser at Visakhapatnam, who conducted the market enquiry there, specifically stated that the pricing of the subject goods should be verified by the Kolkata Customs House. However, no such verification was undertaken. Only a verbal enquiry was conducted at a single bookshop, and no sample was purchased for comparison. Hence, the market enquiry cannot be deemed complete.
c. The SIB report dated 19.02.2002 clearly stated that, in the case of side wheels, samples would have to be compared with the declared goods for drawback purposes.
d. Where inventories were prepared without reference to export documents, it was not possible to correlate the goods with respective shipping bills or confirm any misdeclaration.
e. The valuation of side wheels was based on a market enquiry conducted two days prior to the goods being examined, making it impossible to correlate the market report with the actual goods.
Item No. 48/C-1 22 OA No. 1611/2021
f. The Department failed to consider the
contemporaneous evidence placed on record by the applicant--such as bills of similar goods during the same period--as envisaged under Rule 4 of the Customs (Export Valuation) Rules, 2007.
(iv) Mala fide action by the respondents - Despite the involvement of the Preventive Officer (Mr. Pradeep Juneja) and the Group Appraiser (Ms. Champa Mukherjee), selective disciplinary action was taken only against the applicant.
(v) Addition of charges - The Inquiry Officer, on his own initiative, added charges regarding the alleged presence of women's garments and soiled clothes having no commercial value, even though such allegations did not find any mention in the original charge sheet.
22. The respondents passed the impugned order in complete violation of settled principles of service law by failing to consider crucial evidence, thereby warranting judicial interference by this Tribunal. It is submitted that once it was held that the primary charge of ulterior motive under Article I of the charge memo dated 04.10.2002 was not held proved by the Inquiry Officer, the subsequent charges could not have been held to be proved. As elaborated above, several crucial pieces of evidence were disregarded by the respondents, reflecting a clear non-application of mind.
23. It is reiterated that the applicant fulfilled his duties at all stages, as detailed above. Even the documents relied upon by the respondents, including the SIB report and the mate receipts, confirmed that the quantity of Item No. 48/C-1 23 OA No. 1611/2021 goods declared in the shipping bills matched the individual packages listed in the packing list. Therefore, the allegation that the applicant failed to conduct a proper examination is untenable.
24. As far as the allegation of overvaluation is concerned, the applicant placed contemporaneous bills on record and highlighted discrepancies in the valuation conducted by the respondents. A total of 57 cartons (5% of the total) were selected for examination, and in none of these goods were found short. The random selection of serially numbered packages confirmed the availability of all packages at the time of examination.
25. The allegation that goods were found short at Visakhapatnam Port cannot be attributed to the applicant. After examination under his supervision, the goods were handed over to the Preventive Officer for stuffing, who endorsed and signed the full count of packages in each shipping bill. Subsequently, the Mate of the Vessel confirmed that the full quantity was received on board. The PSSO document also confirmed that the goods were loaded in full. These facts have been admitted by the respondents.
26. Hence, there remains no doubt that the examination was carried out in accordance with the prescribed procedure. As for the respondent's submission regarding the applicant's alleged admission, the applicant categorically clarified that the issue was due to a logistical shortcoming and that the proper procedure was followed. The assertion that the consignment was not fully verified is denied.
Item No. 48/C-1 24 OA No. 1611/2021
27. Sufficient quantity was examined, covering all shipping bills, and the declared quantities in all 57 packages were found to be correct. The Examiner not only examined the goods but also verified the stenciled quantities on the remaining packages. Examination reports for all seven shipping bills were submitted by the Examiner and duly countersigned by the applicant.
CASE LAW RELIED UPON BY THE PARTIES
28. Learned counsel for the applicant places reliance on the order/judgment of various Courts/Tribunal namely;
(i) Order/judgment dated 07.03.1979 of Hon'ble Apex Court in Civil Appeal No. 2152/1969 in the matter of Union of India Vs. J. Ahmed, (1979) 2 SCC 286;(ii) Order/judgment dated 05.04.2007 of Hon'ble Supreme Court in Civil Appeal No. 1815/2007 in the matter of Inspector Prem Chand Vs. Govt. of NCT of Delhi, (2007) 4 SCC 566;(iii) Order/judgment dated 24.08.2023 in Civil Appeal No. 11196/2011 in the matter ofState Bank of India Vs. A.G.D. Reddy, 2023 SCC OnLine SC 1064;(iv) Order/judgment dated 05.04.2006 of Hon'ble Supreme Court in Civil Appeal No. 8267/2004 in the matter of M.V. Bijlani Vs. Union of India& Ors., (2006) 5 SCC 88;(v) Order/judgment dated 27.10.1999 of Hon'ble Supreme Court in Civil Appeal No. 6118/1999 in the matter of Hardwari Lal Vs. State of U.P. & Ors., (1999) 8 SCC 582;(vi)Order/judgment dated 05.04.2006 of Hon'ble Supreme Court in Civil Appeal No. 7645/2004 in the matter of Narinder Mohan Arya Vs. United India Insurance Co. Ltd., (2006) 4 SCC 713; (vii) Order/judgment dated 13.10.1992 of Hon'ble Supreme Court in Civil Appeal No. 4213/1992 in the matter of Item No. 48/C-1 25 OA No. 1611/2021 State Bank of India Vs. D.C. Aggarwal, JT 1992 (6) SC 673;(viii) Order/judgment dated 19.12.2008 of Hon'ble Court in Civil Appeal No. 7431/2008 in the matter of Roop Singh Negi Vs. Punjab National Bank& Ors., (2009) 2 SCC 570 and (ix) Order/judgment dated 02.02.1998 of Hon'ble Supreme Court in Civil Appeal No. 3091/1995 in the matter of Union of India Vs. S. B. Ramesh, (1998) 3 SCC 227.
29. Learned counsel for the respondents places reliance on the order/judgment of various Courts namely, (i) Order/judgment dated 19.10.1962 of the Hon'ble Supreme Court in Civil Appeal No.213/1962 in the matter of State of Orissa Vs. Bidyabhujshan Mohapatra, 1963 SCR Supl. (1) 648; (ii) Order/judgment dated 24.08.2023of the Hon'ble Supreme Court in Civil Appeal No. 11196/2011 in the matter of State Bank of India Vs. A. G. D. Reddy, 2023 INSC 766; and (iii) Order/judgment dated 12.05.2016 of this Tribunal in O.A. No. 3667/2011 in the matter of Shri Vinod Kumar Ahirwar Vs. Govt. of India & Ors.
30. We have heard learned counsels for the parties and considered the submissions put forth by them.
ANALYSIS
31. Since this matter pertains to departmental proceedings, we deem it apt to observe that it is settled principle of law that in departmental proceedings, the Disciplinary Authority is the sole judge of facts. Once findings of fact, based on appreciation of evidence are recorded by the Disciplinary Authority and Appellate Authority, normally the Court/Tribunal may not Item No. 48/C-1 26 OA No. 1611/2021 interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court/Tribunal, since the High Court/Tribunal does not sit as an Appellate Authority, over the factual findings recorded during departmental proceedings, while exercising the power of judicial review. The Tribunal cannot, normally speaking, substitute its own conclusion for that of the departmental authorities, with regard to the guilt of the delinquent.
31.1 In this regard, it is profitable to mention that by referring to catena of judgments on the point of scope of judicial review by the Courts/Tribunals, a three-judge Bench of the Hon'ble Apex Court in the case of B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749:
1996 SCC (L&S) 80] observed as under:-
"13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary enquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the court/tribunal. In Union of India v. H.C. Goel [Union of India v. H.C. Goel, (1964) 4 SCR 718 : AIR 1964 SC 364] this Court held at SCR p. 728 (AIR p. 369, para 20) that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
(emphasis supplied) Item No. 48/C-1 27 OA No. 1611/2021 31.2 In another case in the matter of Union of India vs. P. Gunasekaran reported in (2015) 2 SCC 610, the Hon'ble Supreme Court held that while re- appreciating evidence the High Court cannot act as an appellate authority in the disciplinary proceedings. The Apex Court laid down the parameters as to when the High Court shall not interfere in the disciplinary proceedings as under:-
"13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in
case the same has been conducted in
accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
31.3 In another judgment rendered by a three-judge Bench of the Hon'ble Supreme Court in the case of SBI vs. Ajay Kumar Srivastava, reported in (2021) 2 SCC 612: (2021) 1 SCC (L&S) 457, by referring the law laid down in B.C. Chaturvedi (supra) and catena of other judgments, the Hon'ble Apex Court held as under:-
"22. The power of judicial review in the matters of disciplinary inquiries, exercised by the departmental/appellate authorities discharged by constitutional courts under Article 226 or Article 32 or Article 136 of the Constitution of India is circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and it is not akin to adjudication Item No. 48/C-1 28 OA No. 1611/2021 of the case on merits as an appellate authority............"
23. It has been consistently followed in the later decision of this Court in H.P. SEB v. Mahesh Dahiya [H.P. SEB v. Mahesh Dahiya, (2017) 1 SCC 768 : (2017) 1 SCC (L&S) 297] and recently by the three-Judge Bench of this Court in Pravin Kumar v. Union of India [Pravin Kumar v. Union of India, (2020) 9 SCC 471 : (2021) 1 SCC (L&S) 103] .
24. It is thus settled that the power of judicial review, of the constitutional courts, is an evaluation of the decision-making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.
25. When the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the court is to examine and determine:
(i) whether the enquiry was held by the competent authority;
(ii) whether rules of natural justice are complied with;
(iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion.
(emphasis supplied) Item No. 48/C-1 29 OA No. 1611/2021
26. It is well settled that where the enquiry officer is not the disciplinary authority, on receiving the report of enquiry, the disciplinary authority may or may not agree with the findings recorded by the former, in case of disagreement, the disciplinary authority has to record the reasons for disagreement and after affording an opportunity of hearing to the delinquent may record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the enquiry officer for further enquiry.
27. It is true that strict rules of evidence are not applicable to departmental enquiry proceedings. However, the only requirement of law is that the allegation against the delinquent must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravity of the charge against the delinquent employee. It is true that mere conjecture or surmises cannot sustain the finding of guilt even in the departmental enquiry proceedings.
28. The constitutional court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at those findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained."
(emphasis supplied) 31.4 Further, the Hon'ble Apex Court in the State of Karnataka & Anr. vs. Umesh (2022) 6 SCC 563:
(2022) 2 SCC (L&S) 321, emphasised about the scope of judicial review by the Courts/Tribunal in the matter of disciplinary/departmental proceedings and held that: -
"22. In the exercise of judicial review, the Court does not act as an appellate forum Item No. 48/C-1 30 OA No. 1611/2021 over the findings of the disciplinary authority. The court does not re-appreciate the evidence on the basis of which the finding of misconduct has been arrived at in the course of a disciplinary enquiry. The Court in the exercise of judicial review must restrict its review to determine whether: (i) the rules of natural justice have been complied with; (ii) the finding of misconduct is based on some evidence;
(iii) the statutory rules governing the conduct of the disciplinary enquiry have been observed; and (iv) whether the findings of the disciplinary authority suffer from perversity; and (vi) the penalty is disproportionate to the proven misconduct."
32. Keeping in mind the dicta laid down by the Hon'ble Apex Court and considering the facts and circumstances of the present case, as noted hereinabove, we have carefully examined the IO's report as well as orders passed by the Disciplinary and Appellate authorities. We observe that the case in hand pertains to two containers of export consignment consisting ball pens and side wheels covered under seven shipping bills, all dated 05.01.2002, cleared by Customs officials from N.S. Docks Kolkata Port, which was offloaded at Vishakhapatnam Port for verification of correctness of the declaration of the said consignment, by the Special Investigation Branch on the basis of intelligence inputs after the goods were cleared and shipped from Kolkata port. The above said goods were cleared at Kolkata by the Applicant, the then Appraiser dock, after usual percentage (5% in this case) examination under his Supervision. These consignments were shipped under the drawback scheme allegedly to avail undue drawback.
Item No. 48/C-1 31 OA No. 1611/2021
32.1 It is also observed that the above offloaded
containers were opened and examined 100% by
Vishakhapatnam Customs officials in presence of the SIB officials Customs House, Kolkata, whereas, the applicant was ordered to examine only 5% of items. Further, in absence of shipping bills at the time of examination, inventory of the goods found in each container was prepared in punchnama/Mahazar in presence of two independent witnesses. Later on these inventories were co-related with the packages declared in the shipping bills and on co-relation the packages were found less in numbers in both the containers. A market inquiry was also carried out by Custom Appraiser at Vishakhapatnam for both the items i.e. Ball Pens and Side Wheels. On 17.01.2002, the Ball Pens were inquired verbally from one stationary shop, M/s Jyoti Book Depot, Vishakhapatnam after showing samples of Concord/Paras ball pens. After seeing the samples, the shop offered to sell similar pens @ 2.50/- per piece if order is in bulk. Whereas, the side wheels were enquired on 13.01.2001 from M/s Sree Uma Shankar Cycle & General Stores and a set of two side wheels purchased @75/- against the export price of Rs.19.08 per piece. It is also to be pointed out that consignments containing side wheels were opened and examined on 15.01.2001.
32.2 The arrangement of workflow of the customs Officials as per the Export Consignment in Custom Manual, 2001, issued by Central Board of Excise & Customs, is as follows: -
"1. Firstly, the shipping bills are required to be filed along with all original documents such as invoice, AR-4, packing list etc. The Assessing officer in Export department checks Item No. 48/C-1 32 OA No. 1611/2021 the value of the goods, classification under drawback schedule in case of drawback shipping bills, rate of duty/cess where applicable exportability of goods under EXIM policy and other laws in force. If the assessing officer has any doubt regarding value, description of goods, he may call for samples of the goods from the docks."
32.3 It is also observed in this case that the declared value of the ball pens and side wheels was assessed by Smt. Champa Mukherjee, Assessing Officer. She checked the value of the goods contained in the said shipping bills, classification under drawback schedule, exportability of goods under EXIM policy as per relevant para (para 39) of the Customs Manual, 2001. Further, order was given to examine 5% packages in line with the instructions contained in Circular No.90/98 dated 08.12.1998 as provided in paras 7 (d) and 8, and also for drawl of samples from one consignment only. However, as per her statement as DW-2, though she ordered samples from one consignment, the drawn samples were meant for deciding drawback in all shipping bills. Hence the drawback was dependent on the valuation of the sample carried out. Once, the shipping bill is passed by export department, the exporter or his agent presents the goods to the Shed Appraiser (Export) in docks for examination. The shed appraiser may mark the document to a Custom Officer (usually an Examiner) for examining the goods. The examination is carried out under the supervision of the shed Appraiser. If the description and other particulars of the goods are found to be as declared, the shed appraiser gives a ‗let export' order, after which the exporter may contact the preventive superintendent for supervising the loading of the goods on the vessel. Accordingly, after the goods were passed by export department, the goods entered the dock area of Kolkata Item No. 48/C-1 33 OA No. 1611/2021 port. The port authority on arrival of the goods inside dock area, issued ‗dock challan' for arrival of goods and its declared quantity against each shipping bill. The applicant being shed Appraiser assigned the duty of examination of goods to one Examining Officer (EO) namely, Shri Kalyan Dasgupta. The examiner, under applicant supervision, examined all seven consignments. As per rule, 5% packages were randomly selected for examination from each consignment. On examination by Examining Officer (EO), the inside quantity was reported to be found as per declaration of the exporter. The percentage examination was done as per orders of AO Custom House and rules framed under Circular No.90/98 dated 08.12.1998. After examination, all the reports were submitted by the Examiner to the applicant. As no discrepancies, either in number of packages, or the inside quantity, or description etc. were found by the Examiner in any of the shipping bills and samples drawn as per the orders/directions of the Assessing Officer, the examination report presented was countersigned by the applicant. Therefore, in this case, all the seven shipping bills were duly assessed by AO, Custom House and after assessment the goods entered dock area. The Port authority issued Dock Challan for the quantity of goods received. Thereafter, the goods were presented for examination. The appellant under his supervision assigned one examiner to examine the goods. The examiner, as per mandate, examined 5% goods. In this examination, no discrepancy was found either in number of packages or in description. Accordingly, Examination Report given by Examiner was countersigned by the applicant for allowing the consignment by Preventive officer.
Item No. 48/C-1 34 OA No. 1611/2021
32.4 Another important aspect is that as per export
procedure, the goods were attended by the Preventive officer (PO), who, after examination under supervision of Shed Appraiser, physically verified the goods and after due verification, signed and endorsed the number of packages found on verification in each of the Shipping Bills. The PO further confirmed the said endorsed number of packages in his statement as DW-1 while answering question Nos. 2, 3, and 4. Thereafter, the goods were received on the vessel in good order and condition. Mate Receipt also declared receiving of all the packages along with descriptions. The same has been admitted by the respondents Department. Preventive Superintendent in Preventive Superintendent Stuffing Order (PSSO) sheet also showed no discrepancies in number of packages. The same is also admitted by the respondent Department. Accordingly, it is seen that Docks have multiple checks over the goods like carting of goods by port authority, presentation of goods for examination to the Examiner and Shed or dock appraiser, after examination Preventive officer to check packages and re-stuff the packages into containers, Preparation of Mate's Receipt and Confirmation of receiving packages on Board by Mate. All these actions are simultaneously performed by the officer and person concerned. In such a situation where goods found less at another port after exchanging so many hands and after being shipped from Kolkata, the charge of less quantity cannot be attributed to the applicant and he alone cannot be held responsible for the quantity found less at Vishakhapatnam without examining the roles of other customs officers involved in clearing the consignment. The Mate's receipt clearly read that goods Item No. 48/C-1 35 OA No. 1611/2021 were received on Board in apparent good order and condition. It is also relevant to highlight that the goods were also examined at Visakhapatnam in absence of the exporter or their CHA and the evidences of the so-called independent witnesses present during re-examination at Visakhapatnam could not be recorded by IO during the inquiry as the summons addressed to them returned undelivered with the remarks ‗addressee not found/claimed'. In such a situation, it could be stated that Inquiry has not been conducted by the Inquiry Officer in a fair manner.
32.5 The case of the respondents is that the pens were exported at the rate of Rs. 20.27/-, whereas, the price printed on the packs was Rs.8/- per piece. The Visakhapatnam Customs on inquiry from one leading stationary shop at Visakhapatnam found that similar ball pens can be supplied by them at a price of as low as Rs. 2.50 per piece. In so far as side wheels are concerned, it is stated that the price of the item was declared as Rs.19.08/- a piece, but the ascertained value was found to be only Rs. 2/-per piece. The authorities working under respondents at Visakhapatnam opined that the item side wheel appeared a flimsy item. A sample of set of two side wheels purchased @ Rs. 75/- on 13.01.2001 from a cycle shop. It is observed that even Rs.19.08 per pieces is far lower than that assessed by AO at Kolkata, hence, cannot be termed as favour to the exporter for duty draw back etc. On the issue of valuation, the Group AO's statement recorded in presence of IO as DW-2 clears the position, wherein, she has stated that she had ordered for drawl of samples from one consignment for deciding Item No. 48/C-1 36 OA No. 1611/2021 drawback in all shipping bills. Accordingly, the applicant had drawn samples. Drawback value of goods was not fixed by the applicant. If the respondents have verified the samples drawn from one shipping bill and forwarded to Custom House by the applicant, the actual value of goods under export would have come out. Sadly, respondents did not make any efforts in that direction and the samples were left unattended. Even the Report of IO also casts doubt on this aspect wherein the IO has held that ―the report is not clear whether the price of Rs. 2.50 is applicable to other unbranded ball pens. House could trace out the manufacturers of ball pens and find out at what price they are manufacturing their products in the domestic markets. But no such further verification had been done by the Custom house, Kolkata to find out the veracity of the opinion of the Visakhapatnam customs regarding price of ball pen or to ascertain the actual domestic value of the ball pen‖ 32.6 Inquiry Officer also writes in his Report that the value arrived at by the Appraiser, Visakhapatnam in respect of ball pen @Rs. 2.50/- per unit and Side wheel @Rs. 2/- each are not backed by any expert opinion and also subsequent follow up action had not been taken by the Customs House, Kolkata for ascertaining the actual market value of goods. In view of above assertions of the IO, it could be safely said that even the Inquiry Officer was not sure that the value of pens as Rs.2.50/- per unit suggested in Visakhapatnam report was also applicable to pens examined by the applicant. It is clear that Inquiry Officer had doubts regarding any market enquiry of ball pens carried out at Visakhapatnam. It is Item No. 48/C-1 37 OA No. 1611/2021 also stated by the IO that opinion of Visakhapatnam Appraiser in respect of price of both the items, lacks an expert advice and as such no third-party expert opinion was ever taken by the department. Mandatory valuation verification as suggested by Visakhapatnam customs was also not done by Custom House, Kolkata for any of the items. In view of above, when the valuation angle has not attained finality and also the required verification of value has not been done, we find that the charge of over valuation cannot stand against the applicant. The SIB in their report mentioned that the item so called side wheels were referred to Drawback section of Kolkata Custom House alongwith representative samples for examination from the angle of description for drawback purpose, report is awaited.What happened to such reference is nowhere made clear. Also from the above position, it is clear that no final view on side wheels was ever taken by the department, hence, the charge of description as well as valuation in view of above finding cannot be sustained. In view of clear findings of IO under Charge-I that there is no evidence that the applicant had deliberately acted with ulterior motive and joined hands with exporters allowing them to claim excess drawback claim the charges cannot be proved against the applicant.
33. It is undisputed that the applicant conducted a 5% selective examination in accordance with the orders of the Group Appraiser. This is corroborated by the deposition of both the Group Appraiser and the Preventive Officer. Their testimonies, though available on record, were not given due consideration by the IO or even by the Disciplinary/Appellate Authorities.
Item No. 48/C-1 38 OA No. 1611/2021
34. The IO's report is vitiated on account of reliance on extraneous materials, including reference to items such as soiled garments and unrelated containers, which were not part of the original charge memo. It is well settled that an employee cannot be punished on the basis of charges that are not framed (Ref: Union of India Vs. Gyan Chand Chattar, (2009) 12 SCC 78).
35. The 100% examination report relied upon by the respondents was unsupported by testimony of the two independent witnesses present during the Visakhapatnam examination. Their non-examination violates the principles of natural justice and renders the inquiry process unsustaiable.
36. Furthermore, the IO failed to adhere to the valuation procedures mandated under Section 14 of the Customs Act, 1962 and relevant CBEC instructions. The absence of local market inquiry at the place of export (Kolkata) renders the valuation exercise defective.
37. The UPSC advice was perfunctorily followed, and the appellate authority failed to assign independent reasoning to the applicant's detailed submissions, especially in the appeal dated 08.08.2016. The impugned order dated 15.10.2019 is a non-speaking order, lacking consideration of crucial defense material.
38. It is settled law that re-appreciation of evidence can be done in the interest of the principles of natural justice in a given case, particularly when the initial decision is found to be perverse or against the weight of evidence. This reappraisal helps to ensure a fair hearing and a just outcome, upholding the core principles of fairness and impartiality that are fundamental to the Item No. 48/C-1 39 OA No. 1611/2021 administration of justice. Further upon examination of the disciplinary proceedings, we observe that the disciplinary proceedings suffer from inherent contradictions and do not withstand scrutiny under the principles of fairness and impartiality, which are fundamental tenets of service jurisprudence.
39. In view of the above discussion, we are of the considered view that the disciplinary proceedings initiated against the applicant suffer from procedural irregularities, non-application of mind, and failure to consider relevant evidence, while relying on materials not part of the original charge memo.
40. Accordingly, the OA deserves to be allowed with the following directions:-
(i) The impugned order dated 15.10.2019 (Annexure A-1) passed by the Appellate Authority, the punishment order dated 30.03.2009 (Annexure A-
4) passed by the Disciplinary Authority, the Inquiry Report dated 04.10.2006 (Annexure A-3), and the charge memo dated 04.10.2002 (Annexure A-2) are quashed and set aside.
(ii) The applicant shall be entitled to restoration of his original pay, seniority, and all consequential benefits, including arrears of salary and promotional consideration, within a period of eight weeks from the date of receipt of a certified copy of this order.
Item No. 48/C-1 40 OA No. 1611/2021
41. There shall be no order as to costs.
42. Pending MA(s), if any, shall stand disposed of.
(Rajinder Kashyap) (Justice Ranjit More) Member (A) Chairman /ravi/neetu/