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2018 (5) TMI 793

some external agency and owing to the pressure of the external agency, the sanction order without any new material could be issued? - Held that: - power of review is possible only when there is a provision explicitly under law. As far as the order according sanction is concerned, once it is rejected, it could not be reviewed without any fresh material. - The sequence of communication which has 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 da .....

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ion to discharge the petitioner is pending before the trial Court. The learned counsel for the petitioner would submit that he does not know the fate of the discharge petition, however, he canvasses this writ petition on a different ground. 4. The learned Special Public Prosecutor appearing for the 2nd respondent stated that the discharge petition has already been dismissed. 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 sa .....

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d the very same sanction order and this Court has allowed the writ petition by an order dated 11.08.2017, in which the facts are in pari materia to that of this petitioner. Therefore, following the judgment passed in W.P.No.210 of 2016 dated 11.08.2017, this petition is to be allowed. 7. This submission is strongly opposed by the learned counsel appearing 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 .....

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acy is to establish that there was an agreement between the parties for doing an unlawful Act. To draw an inference of conspiracy the acts or conduct of parties should clearly reveal their concurrence. Even if there is no direct evidence available, circumstantial evidence in the form of a chain of events is required in order to alleged 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 crimi .....

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of ₹ 42,05,597/- and merit action for Major Penalty under CCS(CCA) Rules. In the absence of any prima facie evidence relating to criminal conspiracy, abuse of official position and receipt of illegal gratification, prosecution is not warranted. 10.Further, Section 155 of Customs Act, 1962, extends protection from 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 refer .....

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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. 15. Hence, this Court hold that on the factual matrix, there is no two sanction orders passed by the same authority, without any material. The earlier communication is only a letter of opinion seeking further course of action has been expressed. Whereas, the second communication is the order issued after complete exercise of appl .....

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