S.N. Ojha vs Union Of India & Anr.

Justice L.Narasimha Reddy, Chairman

The applicant is working as Deputy Commissioner in the Central Board of Excise and Customs. He was issued a memorandum of charge dated 01.09.2016. The allegation against the applicant was that while working as an incharge of the clearance cell, at ICD, Tuklakabad in 1997, he cleared the goods belonging to M/s Cinex Overseas, Delhi valued at Rs.6979.50 per kg of beads and thereby enabled the exporter to avail a DEPB credit of Rs.83,69,478/-, and when the goods were stopped at the stage of export at Bombay and verified, it emerged that the value was not more than Rs.50/- per kg., and thereby caused huge loss to the revenue. It was alleged that the bills were processed by Inspector, Superintendent and the applicant acting as Commissioner, and there was serious lapse on their part.

The applicant filed this OA challenging the charge memo. He contends that there was enormous delay in issuing the charge memo and that it would not be possible to conduct any dispassionate inquiry into a stale and old matter stipulated in the year 1997. He further contends that the actual verification of the goods was undertaken by the Inspector and Superintendent and that the Commissioner is not supposed to physically verify the goods. Various other contentions are also urged.

The respondents filed a detailed reply. It is stated that the DEPB is permitted as an incentive for export of valuable goods, so that the Country would get the benefit of foreign exchange and when an exporter is to get the benefit of exemption of payment of customs duty, otherwise payable, the verification was required to be stringent and proper. The respondents stated that the delay occurred in the process of obtaining information at various places and detailed particulars thereof are furnished. It is also stated that the truth or otherwise of the charges leveled against the applicant ascertained only during the course of the inquiry. Reliance is placed upon the judgement of the Hon'ble Supreme Court in Secretary to Government, Prohibition & Excise Department vs. L.Srinivasan(1996) 3 SCC 157; The Secretary, Ministry of Defenceand Orsvs.Prabhash Chandra Mirdha (2012) 11 SCC 565;Union of India vs. Upendra Singh (1994) 3 SCC 357, etc.

The learned counsel for the applicant Sh. Piyush Kumar and learned counsel for the respondents Sh. L.C.Singhi, have argued at length, elaborating the respective pleadings.

The applicant was issued a charge memo dated 01.09.2016.This is in relation to the allegation, pertaining to the acts or omissions on the part of the applicant, in the year 1997 while clearing the goods for export and assessing the value, in the context of allowing DEPB. The description of the goods and the details of the value as affirmed by the applicant were furnished. The plea of the applicant is that the actual verification of the samples is required to be done by the Inspector and Superintendent and he has only affirmed the valuation made by them.

The very purpose of having a hierarchy of officers for taking a decision on whatever matter, is to ensure that no lapse occurs at any stage. It is true that the detailed verification would be done at the lower level. However, the one, who ultimately approves it, cannot be expected to blindly sign whatever is placed before him. It is particularly so, when huge financial implications were involved. The applicant was required to make a physical verification to satisfy him, though not in the same manner as in the case of the Inspector and the Superintendent. If his function was just to put a seal of approval on whatever was done by the Inspector and Superintendent the very exercise becomes redundant. Therefore, we do not agree with the plea of the applicant that he has no role to play in the entire process. We, however, are not recording any finding in this behalf and it needs to be considered in the inquiry.

The second ground pleaded by the applicant is about the delay. It is true that a cursory look at the dates on which the clearance has been taken place on the one hand and the one on which the charge sheet was issued would make one to believe that it was a belated exercise into an otherwise stale matter.

The respondents however have furnished a detailed account of the steps that were taken in the matter ever since the goods were detained and the final decision in this regard was taken. In para-16 of the counter affidavit they have furnished the details of the events that took place between 25.02.1999 and 01.09.2016, and they are as under :

Therefore, it cannot be said that the respondents have raked up a stale issue and initiated disciplinary proceedings against the applicant. Unless such a scrutiny is undertaken the revenue of the state would not at all be safe. As observed earlier, the question as to whether there was any lapse on the part of the applicant can be examined only in the detailed inquiry, which is proposed.

In the judgements referred to in the previous paragraphs as well as in the subsequent judgements, it was clearly held that the occasion for a Court or Tribunal to interfere with the charge would arise only when the proceedings are initiated by an authority not vested with the power or when no act of misconduct can be perceived or discerned, even if the allegations made in the charge memo are taken as true. None of these grounds are urged in this case.

We do not find any merit in this OA and the same is accordingly dismissed. There shall be no order as to costs.