TMI Blog2018 (5) TMI 793X X X X Extracts X X X X X X X X Extracts X X X X ..... been referred would clearly indicate that what was expressed by the Commissioner of Customs vide his letter dated 13.08.2013 is not an order but only an opinion. Nowhere it is stated that he had applied his mind and arrived at a conclusive decision for not according sanction or refusal to accord sanction. Whereas in the subsequent communication dated 30.08.2013, this Court could see that the competent authority has stated after applying his mind, consider that prima facie case has been made out against the petitioner to accord sanction to prosecute. This expression is conspicuously absent in the earlier communication dated 13.08.2013. This Court hold that on the factual matrix, there is no two sanction orders passed by the same authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissed. In any event, the present writ petition seeking Certiorari is based on the short point that the sanctioning Authority to prosecute the petitioner herein, viz., the Commissioner of Customs, had earlier gone through the material placed by the Investigation Agency and had declined to accord sanction. However, after intervention of CVC, the very same officer has accorded sanction to prosecute the petitioner, without any new material to review the earlier order. Therefore, the sanction order is erroneous, illegal and liable to be quashed. 5. The learned counsel appearing for the respondents viz., the Commissioner of Customs and ASP, CBI would submit that, the competent authority to accord sanction, after perusal of the materials pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring for the first respondent pointing out the factual difference between the case of the petitioner, who is the examiner and the case of the petitioner in W.P.No.210 of 2016 Sanjay Kakkal, who was exercising the duty of Assessing Officer. According to the learned counsel for the respondents, the examiner is a person, who is responsible for opening the goods and examining the goods sought to be imported and physically verify the nature of the goods in the shed. Whereas, the Assessing Officer who sits in a remote place, act upon the note forwarded by the examiner. Further against the order passed in W.P.No.210 of 2016, CBI is contemplating to file SLP before the Supreme Court. 8. Be that as it may, as far as the point canvassed before thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d conspiracy. In the instant case, not even circumstantial evidence is available to prove the involvement of the officers with the importer in the conspiracy. In the subject case without substantiating and unearthing the element of collusion of the assessing officer (Shri Sanjay Kakkar-AO) and examining officer (Shri.S.Gugan-EO) with the fraudulent importers (who had hoodwinked the department), charges of criminal conspiracy under Section 120 B of IPC have been made against them. 8. In view of the foregoing, it is seen that the DRI investigations has revealed that the actual importers had intentionally prepared forged/fabricated invoice and packing list and submitted to Customs Department and cleared the consignments by concealing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om suit, proseuction or other legal proceedings to any Government officer for anything which is done or intended to be done in good faith. In the present case, the assessing officers viz., Shri.Sanjay Kakkar, Appraising officer and Shri.P.Kathirvel, Asst.Commissioner, in good faith have assessed the said Bill of entry based on the declared description of the goods by the importer Ultimately the Commissioner of Customs has referred the matter to CVC in consonance with the Vigilance Manual, in view of the difference of opinion between the competent authority and CVC. 12. This communication is only an opinion. It is not the final order of the competent authority as he has rightly said in his letter. He differs from the opinion of CBI a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
