TaxTMI 
TaxTMI 
2017 (8) TMI 582
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....t intends to seek a clarification about any aspect pertaining to assessment, permission of the Assistant Commissioner for seeking such clarification is mandatory. (ii)The work of the Appraising Officer is invariably under the complete control and scrutiny of his immediate superior viz., the Assistant Commissioner and the assessment is considered complete only after the Bill of Entry leaves the screen of the Assistant Commissioner. The entire process is online screen assessment as per the instructions in the Customs Manual and the Departmental Circulars, no original documents are taken at the stage of assessment and these are verified and docketed only at the time of examination by the Examination Shed Officers. Thus, an Appraising Officer discharges his duty only on the computer with the given affirmed declarations and is not required to verify any document, which verification is done only at the time of examination by the designated Customs Officers posted in the Customs Freight Station, vis-a-vis physical goods. (iii)The basic function of the Assessing Officer is to determine the duty payable on imported goods based on the note of exemption benefits claimed by the importer unde....
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....per the procedure based on a comprehensive affirmed declaration of the importer, much prior to even the initiation of investigation by the DRI. It was also known to the 2nd respondent that the practice had continued and had occurred in atleast 83 other imports and 6 FIRs were filed by the 2nd respondent covering the above mentioned 84 import shipment, which are the same as referred by the DRI in its show cause notice. (vi)According to the petitioner, he had assessed the declared goods under the said Bill of Entry under the Customs Tariff Heading (CTH) 84151090. The 2nd respondent claimed that only Air-conditioners fall under CTH 84151090 and it was alleged by the 2nd respondent that it is a part of wrong doing and that the petitioner must have sought for clarification. The complaint proceeded on the fundamental premise that CTH 84151090 is for Air-conditioners only and indoor units would not come under this heading. However, as per the relevant Schedule of the Customs Tariff Act, CTH 84151090 refers to entry as others only and not any specific goods. However, the 2nd respondent has not pointed out the entry in which the declared goods should have been classified. The 2nd responden....
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....have an occasion to physically examine the goods. Only the Customs Examination Shed Officers can examine the goods and it is therefore their duty to revert the Bill of Entry to the Assessing Officers, if the goods declared is found to be different from the declared description. (ix)According to the petitioner, there is no substance in the complaint of the 2nd respondent even at its face value, as the alleged loss of revenue cannot be attributed to him on any count. The 2nd respondent sought sanction from the 1st respondent on 14.05.2013 to proceed against the petitioner for prosecution in a Court of Law. The 1st respondent, being the Competent Disciplinary/Sanctioning Authority had considered the issue in detail and after calling for certain documents pertaining to the investigation from the 2nd respondent, had come to a conclusion that no case was made out by the 2nd respondent and the same did not warrant prosecution of the petitioner in a Court of Law. The 1st respondent, being the Competent Disciplinary/Sanctioning Authority, by her letter dated 13.08.2013, after a detailed and reasoned scrutiny of records, refused to grant sanction to the 2nd respondent stating specifically t....
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....ing of documents based upon the CVC advice and has come to the conclusion that there is lapse on the part of the petitioner and prima facie there is case for sanction for prosecution of the petitioner on 31.10.2013. (ii)In the U.O. note it is observed that the importer is a Trader and the supplier is not the manufacturer. 1498 pieces of indoor units have been declared to be imported. A Trader will not require only indoor units and only 5 container loads of indoor units are being imported. The Declaration of Tariff levy CTH 84151090 applicable to the complete Air-conditioners, for goods described as parts of Air-conditioners should also arise suspicion to the officer to seek a query on the importer as to why only indoor units were being imported and Bill of Entry should have been given a first check to ascertain whether only indoor units is declared to be imported. (iii)In para-4.2 of the U.O. note, it also refers to S.O.23/2006 which states that officers assessing the Bill of Entry shall carefully read each instruction and arrive at a decision to tackle the risk. Para-7.1.1 of U.O. note states that the officer failed to seek revenue centric details from the importer. Had this bas....
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.... prosecute the respondent. In the Order dated 27-11-2007 whereby sanction was refused, it was observed as under : "Therefore, after thorough examination of the case taking all the aspects into consideration and scrutiny of the service records it has been concluded that Shri Sareen in the course of his duties and responsibilities and impartial discharge of his duties (sic). It appears that the complainant has registered a case which appears to be frivolous and has resulted in unnecessary harassment and hindrance in the working of the Drug Inspector. In view of this, there appears to be no justification for launching prosecution against Shri Nishant Sareen, Drug Inspector as it appears to be a case of personal enmity." 5.It appears that the Vigilance Department took up the matter again with the Principal Secretary (Health) for grant of sanction as in their opinion sufficient evidence existed to prosecute the respondent. The competent authority, thus, reconsidered the matter and granted sanction to prosecute the respondent vide its Order dated 15-3-2008. In the sanction Order dated 15-3-2008, it was observed thus: "I agree with the contention of the Vigilance Department that ....
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....ant that fresh materials were collected by the investigating agency and placed before the sanctioning authority for reconsideration and/or for review of the earlier order refusing to grant sanction. As a matter of fact, from the perusal of the subsequent Order dated 15-3-2008 it is clear that on the same materials, the sanctioning authority has changed its opinion and ordered sanction to prosecute the respondent which, in our opinion, is clearly impermissible. 15.By way of footnote, we may observe that the investigating agency might have had legitimate grievance about the Order dated 27-11-2007 refusing to grant sanction, and if that were so and no fresh materials were necessary, it ought to have challenged the order of the sanctioning authority but that was not done. The power of the sanctioning authority being not of continuing character could have been exercised only once on the same materials. (ii)CDJ 2012 MHC 1433 [M.S.Vijayakumar and another Vs. The Chairman and Managing Director, Indian Overseas Bank, Chennai and others] wherein a Division Bench of this Court held as follows: "... 11.The main grounds on which the appeal has been filed are that: (i)There is no power of....
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....dependent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority not to sanction was taken away and it was compelled to act mechanically to sanction the prosecution. ... 32. ... While the law is thus well settled, on the facts of the present case, we have no hesitation to hold that the impugned sanction has been given by the authority on the same material, which was available before the Authority on the earlier two occasions when the refusal was made. ... 35.It is unfortunate that in spite of the alleged grave nature of the offences stated to have been committed by the appellant as well as the petitioner, the employer, being the Sanctioning Authority, having taken a lenient view earlier of declining to grant sanction has changed its opinion due to the pressure from the extraneous sources, which is certainly not expected of the Sanctioning Authority in the light of the well settled principles of law. Unfortunately, the learned Judge has not taken note of the said relevant fact, which in our view vitiates the impugned sanction order. It cannot be said t....
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....a (Allocation of Business) Rules, 1961. Sub- rules (3) and (4) of Rule 3 of the Rules read as under: - "3.(3) Where sanction for the prosecution of any person for any offence is required to be accorded " (a)If he is a Government servant, by the Department which is the Cadre Controlling authority for the service of which he is a member, and in any other case, by the Department in which he was working at the time of commission of the alleged offence; (b)If he is a public servant other than a Government servant, appointed by the Central Government, by the Department administratively concerned with the organization in which he was working at the time of commission of the alleged offence; and (c)In any other case, by the Department which administers the Act under which the alleged offence is committed; Provided that where, for offences alleged to have been committed, sanction is required under more than one Act, it shall be competent for the Department which administers any of such Acts to accord sanction under all such Acts. (4) Notwithstanding anything contained in sub-rule (3), the President may, by general or special order, direct that in any case or class of case, the sanct....
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....nistrative notings different authorities have opined differently before the competent authority took the decision in the matter. It is not a case where the Finance Minister was not the competent authority to grant the sanction. What is required under Section 19 of the Prevention of Corruption Act, 1988 is that for taking the cognizance of an offence, punishable under Sections 7, 10, 11, 13 and 15 of the Act committed by the public servant, is necessary by the Central Government or the State Government, as the case may be, and in the case of a public servant, who is neither employed in connection with affairs of the Union or the State, from the authority competent to remove him. Sub-section (2) of Section 19 of the Act provides that: "19.(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction, as required under sub-section (1) should be given by the Central Government or the State Government or any authority, such sanction shall be given by that Government or authority which could have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed." 13.Sub-section (3) of Section 19 of the....
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....of Punjab and another Vs. Mohammed Iqbal Bhatti] wherein the Apex Court held as follows: "... 6.Although the State in the matter of grant or refusal to grant sanction exercises statutory jurisdiction, the same, however, would not mean that power once exercised cannot be exercised once again. For exercising its jurisdiction at a subsequent stage, express power of review in the State may not be necessary as even such a power is administrative in character. It is, however, beyond any cavil that while passing an order for grant of sanction, serious application of mind on the part of the concerned authority is imperative. The legality and/or validity of the order granting sanction would be subject to review by the criminal courts. An order refusing to grant sanction may attract judicial review by the Superior Courts. 7.Validity of an order of sanction would depend upon application of mind on the part of the authority concerned and the material placed before it. All such material facts and material evidences must be considered by it. The sanctioning authority must apply its mind on such material facts and evidences collected during the investigation. Even such application of mind doe....
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....nna Reddy, Governor of Tamil Nadu, Madras-22 and others] wherein the Division Bench of this Court held as follows: "... 30. Major part of the arguments advanced by learned senior counsel for the petitioner was an attack on the validity of the order of the first respondent on different grounds. We do not propose to consider any of them here, in the view we have taken on the maintainability of the writ petition. Suffice it to point out that the petitioner has ample opportunity to raise all those contentions in the proceedings under the Act, if initiated pursuant to the sanction granted by the first respondent. As at present, this petition is premature and not maintainable. We do not accept the contention that the writ petition could be admitted in order that the court mould the relief ultimately, as the fundamental rights of the petitioner are affected. We have already found that the order of sanction does not in any manner affect any of the fundamental rights of the petitioner. (v)2012 (2) MWN (Cr.) 141 [Ravikumar and another Vs. State, rep by the Deputy Superintendent of Police, SPE/CBI/ACB/Chennai] wherein this Court held as follows: "... 17.In the decision cited supra, the ....
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....urt in its Judgment has clearly held, upon perusing the entire records, that no fresh material was produced. There is also nothing to show as to why reconsideration became necessary. On what premise such a procedure was adopted is not known. Application of mind is also absent to show the necessity for reconsideration or review of the earlier order on the basis of the materials placed before the Sanctioning Authority or otherwise." ... 19.It is also made clear by this Court that any order granting sanction cannot be subjected to judicial review by the High Court under Article 226 of the Constitution of India, since such an order of sanction can be tested at the time of trial, but at the same time, an order of the Competent Authority declining to grant sanction for prosecution, since it puts an end to the proceedings, can be subjected to judicial review by the High Court under Article 226 of the Constitution of India. But in this case, unfortunately, the Central Bureau of Investigation instead of challenging the order of the Competent Authority declining to grant sanction has travelled in a wrong direction to approach different authority to get the sanction order based on the....
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.... CVC even one day prior to the date of despatch. In other words, the report of the CVO was signed on 13.08.2013 itself, when the report of the Competent Authority was despatched to the CVO only on 14.08.2013. This is evident from the report of the CVO that has been enclosed at page-95 in the typed set of papers filed by the petitioner. The CVO had prepared the report even without receiving the report of the Competent Authority. The CVC, in turn, had advised grant of sanction for prosecution and in view of the advise of the higher authority, the same Competent Statutory Authority, without rebutting any of her own findings in the earlier report dated 13.08.2013 and without any fresh investigative materials on the issue, granted sanction. 8.It is brought to the notice of this Court that the disciplinary proceedings initiated against the petitioner has resulted in a final order dated 08.06.2017 passed by the Competent Statutory Authority dropping the charges against the petitioner. 9.With regard to the contention of the learned Additional Solicitor General that sanction was accorded based on fresh materials is concerned, the fresh materials in the form of RMS instructions cannot be c....