Moazzam Hayat, Member.--Appellant Aftab Hussain Shah, Superintendent Customs in the Model Custom Collectorate, was awarded penalty of censure vide order dated 09.08.2011 under Civil Servants (E&D) Rules, 1973. This order was conveyed to him on 16.09.2011. His departmental appeal dated 29.09.2011 was rejected on 22.11.2011. The appeal rejection order was received by him on 12.12.2011. Hence this appeal.
2. The appellant was charge sheeted on 31.01.2011. The allegations pertained to examination of GD No, 605/2009 dated 15.08.2009, assigned to examiner Siraj-ul-Islam. It was stated that he had ignored the procedure to give favour to the importer. He was also accused of receiving photocopy of invoice and of not pointing out discrepancy in declaration made by the importer on the BL, TP and GD. The examined good was declared to be enamelled aluminum wire whereas it was actually copper coated wire. Mr. Muhammad Nasir Khan, Collector was appointed as Enquiry Officer. In his report the charge of negligence was established against the appellant. After serving a show cause notice to the appellant the authorized officer awarded him the penalty in question.
3. Mr. Iftikhar Ahmed, Advocate, representing the Federal Board of Revenue and Mr. M.D. Shehzad representing the Collector (customs) have stated that the appellant had been awarded penalty in question after observance of all the legal and codal formalities. According to them a regular inquiry was held against the appellant in which the charge of negligence was fully proved against him.
4. We have heard the learned counsel for the parties and have also perused the record.
5. The subject matter of the charge sheet was also before the Collector (Appeals) on judicial side when he decided the appeal of M/S Rafiullah, Traders. In his judgment dated 07.12.2010 he did not find any fault in the declaration in respect of GD No, 605/2009. A further view was taken that the examination of the imported goods was carried out lawfully. When the Collector (appeals) had accepted the appeal of importer and had held that examination of goods on the basis of GD No, 605/2009 was legal, no charge was made out against the present appellant. The judicial order has to prevail over the inquiry report of Mr. Muhammad Nasir Khan. The Collector in his inquiry had found the appellant guilty of negligence for not carrying out correct examination of imported goods but on the judicial side the said examination was held to be proper. The judgment given by the Collector (appeals) has demolished the entire case of the respondents against the appellant.
The beneficiary of the examination was the importer. The appellant was actually accused of giving unlawful favour to the importer. But the Collector (Appeals) had accepted the appeal of the importer and did not find him involved in evasion of taxes/duty through declaration of imported goods. Relying on the judgment of the Collector (Appeals), we hold that there was no deviation from the rules and no misdeclaration of goods. When there was no such departure from the rules and no mis-declaration, the appellant could not be accused of the charges levelled against him.
6. The officials directly concerned with the examination of the imported goods were the Deputy Superintendent and Inspector. They were not given even the penalty of censure. We are of the view that the persons directly involved in the examination were more responsible than the supervisory officer. If they were let off, the supervisory officer could not be given any penalty.
7. The persons actually involved in the matter and the beneficiary i,e, the importer were let off, hence, the appellant alone could not be made a scapegoat and awarded penalty of censure. The impugned order is violative of judicial principles of equity and good governance. The result is that the appeal is accepted and the penalty of censure imposed upon the appellant is set aside.
8. There shall be no order as to costs. Parties shall be informed.