TaxTMI 
TaxTMI 
2017 (7) TMI 85
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....s Intertrade Incorporated, Noida declaring the imported goods to be 'Plastic Buttons' valued at Rs. 56,531/- whereas on verification the packet was found to be intact and in its original packing. Goods on examination were found to be cellular phones along with batteries and chargers valued at Rs. 74,80,000/-. The respondent was asked to show why a penalty under Section 17 of the Customs Act, 1962 should not be imposed on him. Prior to this show cause notice he was put under suspension vide order dated 15.01.1999. The show cause notice was adjudicated upon by the Commissioner of Customs, New Delhi who vide order dated 19/25.08.1999 imposed a penalty on the applicant but the same was set aside by the Custom, Excise & Service Tax Appellate Tribunal (in short 'CESTAT') vide order dated 12.07.2000. The suspension order was revoked vide order dated 18.08.2000 and the respondent re-joined his duties. 3. The respondent was also charge-sheeted under Rule 14 of the CCS (CCA) Rules, 1965 vide memo dated 01.08.2000 on the same charge i.e. false examination report entered by him with respect to Bill of Entry No.724870 dated 21.12.1998. On denial of the charges by the respondent, an inquiry u....
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.... have no bearing on the departmental enquiry as both are distinct in nature. The provisions of the Indian Evidence Act are not strictly applicable to disciplinary proceedings and the doctrine of preponderance of probabilities applies in such proceedings. There is no statutory rule or provision which stipulates that the departmental proceedings cannot be opened or initiated after a decision of acquittal in a criminal case arising from the same cause of action. He places reliance on S. Govinda Menon v Union of India & Anr. AIR 1967 SC 1274 (paragraphs 7 and 9) and Om Prakash v Delhi Society for Prevention of Cruelty of Animals & Ors. 2011 IX AD (DELHI) 741 (paragraph 11). 8. Per contra, Ms.Vidushi Shubham, learned counsel for the respondent had argued that there is no infirmity or illegality in the order of the Tribunal and therefore it does not warrant any interference. 9. The learned counsel for the respondent had argued that the Tribunal was correct in coming to the conclusion that prejudice was caused to the respondent as the original Bill of Entry on which the departmental proceedings have been rested, was neither made available to the respondent nor it's copy was produced....
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.... of Post Offices v. A. Gopalan [(1997) 11 SCC 239 : 1998 SCC (L&S) 124] the view expressed in Nelson Motis v. Union of India [(1992) 4 SCC 711 : 1993 SCC (L&S) 13 : (1993) 23 ATC 382] was fully endorsed by this Court and similarly it was held that the nature and scope of proof in a criminal case is very different from that of a departmental disciplinary proceeding and the order of acquittal in the former cannot conclude the departmental proceedings. This Court has further held that in a criminal case charge has to be proved by proof beyond reasonable doubt while in departmental proceeding the standard of proof for proving the charge is mere preponderance of probabilities. Such being the position of law now settled by various decisions of this Court, two of which have already been referred to earlier, we need not deal in detail with the question whether acquittal in a criminal case will lead to holding that the departmental proceedings should also be discontinued. That being the position, an order of removal from service emanating from a departmental proceeding can very well be passed even after acquittal of the delinquent employee in a criminal case. In any case, the learned Single....
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....19.10.2005: "12. I, find that the Department"s case is for feeding of false examination report of the goods which were never got examined by the appellant and were seized. The examination report was fed through the Computer Logging of the appellant whose Password was in the custody of the appellant only and it was his duty to keep it secret. The appellant has taken plea that the Hon'ble CEGAT has set aside the penalty imposed upon him under the Customs Act in this case which was booked under the Customs Act and he was made a party in the same. In this context, I find that the proceedings under the Customs Act are different from the proceedings under CCS (CCA) Rules, in as-much-as the proceedings under the Customs Act pertain to irregular import and involvement of the officer in fraudulent import whereas the proceedings under the CCS (CCA) Rules, 1965 pertain to conduct of the officer. Thus both the proceedings are different in nature, under different set of Rules and have different implications and there is no bar in conducting both the proceedings side-by-side at the same time. The result of one proceedings does not have bearing on the other proceedings. CEGAT might have found ....
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....sed to him by the non-supply of the original Bill of Entry. This is not sufficient to say that non-supply of Bill of Entry caused prejudice to him but he is to further explain what prejudice was caused. The respondent in his written submissions dated 27.01.2017 submitted before this Court had simply stated that the Tribunal was correct in coming to the conclusion that prejudice had been caused by the non-supply of the original Bill of Entry. In his defence submitted before the Inquiring Authority on 29.10.2001 the respondent had, inter alia, stated that in the absence of the original Bill of Entry there is no proof that the impugned Bill of Entry was marked to him and processed by him. He stated that unless he had been shown hard copy of Bill of Entry No.724870 dated 21.12.1998, he cannot say whether he examined the consignment on 21.12.1998 at 04:43 PM. He stated that in the daily working sometimes it is not possible to keep the Password a secret. He stated that he did not change his Password since he joined Import Shed as he is not much aware of computer working. He stated that he did not reveal his Password intentionally but many people are around when he feeds the report and an....
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....her proves complicity of Shri Sharma with the bogus importer. 18. The password is a very important tool in Computer System and same has to be guarded with utmost care. In EDI System, password is akin to signature and it is the only proof that a particular paper was processed by a particular person. If the plea of Shri Sharma that his password was leaked and he is not responsible for such leakage is accepted for the same of argument. I am afraid that the basis sanctity behind computer operation will be lost. The entire computer operations would carry no meaning as nobody would be responsible for the commands given through his "password" and the plea of Leakage of password" can be taken as and when any wrong doing is detected." 20. Therefore the Disciplinary Authority and the Appellate Authority did not find any prejudice to have been caused due to the non-supply of the original Bill of Entry. It is well settled law that the technical rules of evidence do not apply to a departmental enquiry and the doctrine of 'proof beyond reasonable doubt' has no relevance in a departmental enquiry. All that is needed to establish misconduct is preponderance of probability and some material o....
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....standard of proof is the same both in civil cases and domestic enquiries. (Emphasis supplied) 21. The Hon'ble Supreme Court in Lalit Popli v. Canara Bank, (2003) 3 SCC 583 while laying down the standard of proof in Disciplinary proceedings held as under: "16...In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of "proof beyond doubt" has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct." 22. The Hon'ble Supreme Court in K.L. Tripathi v. State Bank of India, (1984) 1 SCC 43 while laying down that the scope of principles of natural justice is dependent on the facts and circumstances of each case held that: "31. Wade in his Administrative Law, 5th Edn. at pp. 472-475 has observed that it is not possible to lay down rigid rules as to when the principles of natural justice are to apply: nor as to their scope and extent. Everything depends on the subject-matter, the application of principles of natural justice, resting as it does upon statutory implication, must always be in conformity with the scheme of the ....
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....n record and evidence, a reasonable and prudent man would come to the conclusion that the delinquent officer had indeed committed an act of misconduct. 'Preponderance of Probability' is not burdened with the technicalities of the rules of evidence. If after going through the evidence the Disciplinary Authority finds the delinquent officer guilty of misconduct and the delinquent officer is not sufficiently able to rebut this finding, then the order of the Disciplinary Authority would be good in the eyes of law. 28. The Hon'ble Supreme Court in B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 while laying down the scope of judicial review of departmental enquiries held as under: '12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of....