TaxTMI 
TaxTMI 
2009 (10) TMI 564
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.... etc. procured free of import duty under the relevant notifications under the Customs Act read with the provisions of the Foreign Trade Policy and as per the procedures laid down under the Scheme for Export Oriented Units. Pursuant to the intelligence received by the Central Excise Department that the petitioner was indulging in diversion of brass scrap imported duty-free under the 100% Export Oriented Unit (EOU) Scheme in the local market without payment of appropriate duty, a team of officers visited the unit atJamnagarand carried out search on14th February, 2008. During the search operation, the officers recovered certain record and private chits indicating diversion of duty-free imported goods in the local market without invoice and without payment of duty. The officers, in presence of independent panchas, seized the record by drawing a regular panchnama dated14th February, 2008. Upon scrutiny of the record, it was revealed that the petitioner had shown the recovery of attachment of impurities in imported scrap at a higher ratio. According to the Central Excise authorities, the petitioner was showing higher generation ratio of impurities so as to manipulate the actual content o....
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....ioner,Rajkotand various other authorities. On1st March, 2008, Mr. Sanjay Sayani filed a criminal complaint before the Chief Judicial Magistrate,Rajkotagainst all officials of Customs and Central Excise being Criminal Case No. 32 of 2008. On4th March, 2008, a Civil Suit came to be filed by the petitioner for defamation and personal physical harassment against the officials of the Customs and Central Excise Department. 3. Subsequently, a search warrant came to be issued against the petitioner by the Assistant Commissioner (AE), Central Excise Headquarter,Rajkotauthorising Mr. D.S. Meena, Inspector to carry out a search. A team of officers carried out the search in presence of two independent panch witnesses under a regular panchnama dated06th March, 2008. The petitioner Mukesh Natwarlal Sayani was present at the factory premises. The officers seized the CPU of two computers available in the factory premises under the belief that the same contained details of accounts transactions of the petitioners. It appears that advocate of the petitioner was also present at the relevant time and upon completion of panchnama, though requested, both Mr. Mukeshbhai Sayani and advocate Veljib....
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....ooperated in investigation despite directions of this Court, and the stand is that although the petitioners may not cooperate in investigation/inquiry, and both the petitioners may not obey direction of the Court, still the Court may entertain this petition. Such a stand cannot be accepted. Extraordinary jurisdiction under Article 226 of the Constitution of India can be invoked to support & supplement the due process of law or to protect constitutional right of a law abiding citizen, and not to support a citizen's attempt to obstruct the due process of law even by disobeying the direction of this Court. Such powers can not be invoked to circumvent the process of law. The petition, therefore, must fail. The petition stands dismissed. Notice discharged. Interim reliefs stand vacated." 6. In view of the breach of the directions issued by the Division Bench vide order dated 4th April, 2008 in Special Civil Application No. 4517 of 2008 and order dated 25th September, 2008 passed in Civil Application No. 5050 of 2008, the Department filed an application for contempt against the Ex-Director of the Company Mr. Sanjay Sayani being Miscellaneous Civil Application No. 2721 of 2008 whe....
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.... Rs. 2.91 crores involving central excise duty of a sum of Rs. 67,00,000/- approximately and that the petitioner, its directors and ex-directors are deliberately not cooperating with the investigation and creating obstructions to sabotage the investigation. It is inter alia stated in the said affidavit that no arrest memorandum has been issued by the Central Excise Department till the date of filing the affidavit, hence the petition is pre-mature. It is also stated that the petitioner has suppressed the fact that they have committed willful breach of the direction issued by a Division Bench of this Court by order dated4th April, 2008passed in Special Civil Application No. 4517 of 2008. It is emphasized that the petitioner has not cooperated in the investigation pursuant to the search carried out on its premises. It is submitted that the petitioner being a 100% EOU is obliged to fulfil all conditions imposed for importing duty free goods. In the event of non-observance of conditions of exemption of duty and such conditions imposed by law, such unit is liable for payment of duty, penalty etc. under the provisions of the Customs Act, 1962 and/or Central Excise Act, 1944. It is submitt....
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....e petitioner's factory premises for the sole reason of non-cooperation on the part of the petitioner. 10. Mr. Y.N. Oza, learned senior advocate with Mr. R.K. Savjani, learned advocate for the petitioner has submitted that Section 13 of the Act which provides for the power to arrest has not been enacted to give overriding powers to the authorities akin to admissibility of statements in evidence. It is submitted that before resorting to the power of arrest under Section 13 of the Act, the entire process laid down under the Code of Criminal Procedure has to be followed. According to the learned counsel, a complaint under Section 190 of the Code is required to be laid before the concerned Magistrate and it is only upon issuance of an arrest warrant that arrest can be made. Referring to the provisions of Section 19 of the Act, which provides for 'Disposal of persons arrested' and Section 21 which provides for 'Inquiry how to be made by the Central Excise officers against arrested persons forwarded to them under Section 19', it is submitted that for the purpose of arresting a person under the Central Excise Act, the entire procedure as envisaged under the Code is required to be f....
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.... it will be for the Magistrate to issue the process after looking into the gravity of the complaint. Secondly, the arrest of a person under this Act has to be made only when there is a prima facie case against him and that too by the due process of law. It is further held that the authorities under the Central Excise Act have no power under the Act to arrest anybody except in the cases as prescribed under Section 13 of the said Act, as enumerated in sub-clause (2) of Section 13 of the said Act. On completion of the enquiry, they have also power to file a complaint and pray before the Court for action in accordance with law. In fact the relief prayed for vide paragraph 10(BB) is based on the said decision. Reliance is placed upon a decision of the Apex Court in State of Punjab v. Ajaib Singh [AIR 1953 SC 10] for the proposition in case of a non-cognizable offence, arrest can be made only under a warrant of arrest. 11. Another legal contention raised on behalf of the petitioner is that criminal prosecution cannot be initiated or continued till the final adjudication by the Customs and Central Excise Department and till the petitioner is not proved to be an evader of customs a....
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.... has been issued by the Central Excise Department on the date of filing of the petition or even on the date of filing of the affidavit dated6th July, 2009filed on behalf of the respondent No. 2. Next, it is submitted that the petition is not maintainable inasmuch as the petitioner is seeking a blanket order not to arrest the Directors. Next, it is contended that the petition is barred by the principle of res judicata in view of the fact that on an earlier occasion a petition wherein similar reliefs had been prayed for has been dismissed. It is submitted that the petitioner has been resorting to instituting various litigations before different forums more or less with a view to avoid having to appear before the respondent authorities in connection with the investigation being carried out pursuant to the search made on the premises of the petitioner. It is submitted that the petitioner has suppressed various material facts like the filing of the contempt petition against Mr. Sanjay Sayani for non-compliance with the direction issued by the Division Bench in Special Civil Application No. 4517 of 2008. Reliance is placed upon a decision of the Apex Court in Udyami Evam Khadi Gramodyog ....
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....L.T. 8 (P&H)] wherein the Court was dealing with the issue as to whether a Central Excise Officer is debarred from arresting a person without a warrant despite the fact that he has reasons to believe that the person is liable to be punished under the Central Excise Act, 1944. The Court, after extensively considering the provision of Sections 9(A), 13, 14 and 18 of the Act, held that an officer of the Department of Central Excise who has been duly authorised by the Central Government is not debarred from arresting a person without a warrant when he has reason to believe that the person is liable to be punished under the Central Excise Act, 1944. The Court held that on a harmonious construction, the power under Section 13 is not curtailed by Section 18. In fact, Section 18 is merely procedural. Thus, the competent officer is not required to obtain a warrant before he is able to arrest a person in exercise of powers under Section 13 of the Act. It is accordingly submitted that the issue in question stands decided by the said decision of the Punjab & Haryana High Court and that it is permissible for the authorities under the Central Excise Act to arrest a person under Section 13 of the....
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.... Central Excise Act, 1944 without issuance of warrant and whether lodgment of an FIR or a complaint is necessary as a pre­condition for exercise of powers of arrest under Section 13 of the Act and secondly, whether criminal prosecution cannot be initiated or continued till the final adjudication by the Customs and Excise Department. 17. For the purpose of deciding the aforesaid issues, it would be necessary to examine the scheme of the Central Excise Act in the context of the relevant provisions. The Preamble to the Central Excise Act, 1944 says; "Whereas it is expedient to consolidate and amend the law relating to central duties of excise on goods manufactured or produced in certain parts ofIndia". Practically, all the provisions are enacted to achieve this object. Thus, the main purpose of the Act is to levy and collect central excise duties and Central Excise Officers have been appointed therein for this main purpose. In order that they may carry out their duties in this behalf, powers have been conferred on them to see that the duty is not evaded and persons guilty of evasion of duty are brought to book. Section 9 of the Act provides for offences and penalties and t....
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....he exemptions under Sections 132 and 133 of the Code of Civil Procedure, 1908 (5 of 1908) shall be applicable to requisitions of attendance under this section. (3) Every such inquiry as aforesaid shall be deemed to be a 'judicial proceeding' within the meaning of Section 193 and Section 228 of the Indian Penal Code, 1860 (45 of 1860)." Section 15 of the Act which provides for 'Officers required to assist Central Excise Officers' lays down that all officers of Police and Customs and all officers of the Government engaged in the collection of land revenue, and all village officers are hereby empowered and required to assist the Central Excise Officers in the execution of the Act. Section 18 which provides for 'Searches and arrests how to be made' lays down that all searches made under the Act or any rules made thereunder and all arrests made under the Act shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898 relating respectively to searches and arrests made under that Code. Section 19 lays down that every person arrested under the Act shall be forwarded without delay to the nearest Central Excise Officer empowered to send person so....
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....ggling of goods and the due realization of customs duty to determine the action to be taken in the interests of the revenue of the country by way of confiscation of goods on which no duty has been paid and by imposing penalties and fine. The powers of Customs Officers are really not for the purpose of effective prevention and detection of crime in order to maintain law and order which the police officers enjoy. Since the provisions of the Customs Act are similar to the provisions of the Central Excise Act and various decisions of the Supreme Court touching the issue in question are rendered in the context of the provisions of the Customs Act, it would be germane to refer to the provisions of Section 104 of the Customs Act in the context of the relevant provisions of the Central Excise Act. Section 104 of the Customs Act reads as under : "104. Power to arrest. - (1) If an officer of customs empowered in this behalf by general or special order of the Commissioner of Customs has reason to believe that any person in India or within the Indian customs waters has been guilty of an offence punishable under Section 135, he may arrest such person and shall, as soon as may be, inf....
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....osing penalties and fines. 21. In Badaku Joti v. State of Mysore, AIR 1966 SC 1746 = 1978 (2) E.L.T. (J323) (S.C.) the Supreme Court after considering the provisions of Sections 9, 13, 18 and 19 of the Central Excise Act held that the sections clearly show that the main purpose of the Act is to levy and collect excise duties and Central Excise Officers have been appointed thereunder for this main purpose. In order that they may carry out their duties in this behalf, powers have been conferred on them to see that duty is not evaded and persons guilty of evasion of duty are brought to book. Section 9 of the Act provides for punishment which may extend to imprisonment upto 6 months or to fine upto Rs. 2000 or both where a person (a) contravenes any of the provisions of a notification issued under Section 6 or of Section 8, or of a rule made under clause (iii) of sub-section (2) of Section 37; (b) evades the payment of any duty payable under the Act; (c) fails to supply any information which he is required by rules made under the Act to supply or supplies false information; and (d) attempts to commit or abets the commission of any of the offences mentioned in clauses (a) and (b....
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....the Act has power to submit a charge-sheet under Section 173 of the Code of Criminal Procedure. Under Section 190 of the Code of Criminal Procedure a Magistrate can take cognizance of any offence either (a) upon receiving a complaint of facts which constitute such offence, or (b) upon a report in writing of such facts made by any police officer, or (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. A police officer for purposes of clause (b) above can in our opinion only be a police officer properly so-called as the scheme of the Code of Criminal Procedure shows and it seems therefore that a Central Excise Officer will have to make a complaint under clause (a) above if he wants the Magistrate to take cognizance of an offence, for example, under Section 9 of the Act. Thus though under sub-section (2) of Section 21 the Central Excise Officer under the Act has the powers of an officer incharge of a police station when investigating a cognizable case, that is for the purpose of his inquiry under sub-section (1) of Section 21. Section 21 is in terms different from Section 78 (3) of the ....
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....l be proved as against a person accused of any offence'. The broad ground for declaring confessions made to a police officer inadmissible is to avoid the danger of admitting false confessional statements obtained by coercion, torture or ill-treatment. But a Customs Officer is not a member of the police force. He is not entrusted with the duty to maintain law and order. He is entrusted with powers which specifically relate to the collection of customs duties and prevention of smuggling. There is no warrant for the contention raised by counsel for Mehta that a Customs Officer is invested in the enquiry under the Sea Customs Act with all the powers which a police officer in charge of a police station has under the Code of Criminal Procedure. Under the Sea Customs Act, a Customs Officer is authorised to collect customs duty to prevent smuggling and for that purpose he is invested with the power to search any person on reasonable suspicion (Section 169); to screen or X-ray the body of a person for detecting secreted goods (Section 170-A); to arrest a person against whom a reasonable suspicion exists that he has been guilty of an offence under the Act (Section 173); to obtain a search wa....
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....tion 171-A of the Sea Customs Act is inadmissible. The Court held thus : "11. xxxxxxx By Article 20(3) of the Constitution a person who is accused of any offence may not be compelled to be a witness against himself. The guarantee is, it is true, not restricted to statements made in the witness box. This Court in State of Bombay v. Kathi Kalu Oghad observed at p. 37 : 'To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise. 'To be a witness' in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing." But in order that the guarantee against testimonial compulsion incorporated in Article 20(3) may be claimed by a person it has to be established that when he made the statement sought to be tendered in evidence against him, he was a person accused of an offence. Under Section 171-A of the Sea Customs Act, a Customs Officer has power in an e....
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....e the Court used the expression 'the person accused must have stood in the character of an accused person'. The Supreme Court held that the Court in Kathi Kalu Oghad case has not set out a different test for determining the stage when a person may be said to be accused of an offence and that in Kathi Kalu Oghad case the Court merely set out the principles in the light of the effect of a formal accusation on a person viz. that he stands in the character of an accused person at the time when he makes the statement. The Court was of the view that normally a person stands in the character of an accused when a first information report is lodged against him in respect of an offence before an officer competent to investigate it, or when a complaint is made relating to the commission of an offence before a Magistrate competent to try or send to another Magistrate for trial the offence, where a Customs Officer arrests a person and informs that person of the grounds of his arrest, (which he is bound to do under Article 22(1) of the Constitution) for the purposes of holding an enquiry into the infringement of the provisions of the Sea Customs Act which he has reason to believe has taken place....
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....he entry is prohibited. He does not on that account become either a police officer, nor does the information conveyed by him, when the person guilty of an infraction of the law is arrested, amount to making of an accusation of an offence against the person so guilty of infraction. Even under the Act of 1962 formal accusation can only be deemed to be made when a complaint is made before a Magistrate competent to try the person guilty of the infraction under Sections 132, 133, 134 and 135 of the Act. Any statement made under Sections 107 and 108 of the Customs Act by a person against whom an enquiry is made by a Customs Officer is not a statement made by a person accused of an offence." 23. In Illias v. Collector of Customs, (1969) 2 SCR 613 = 1983 (13) E.L.T. 1427 (S.C.) the Supreme Court summarized the comparison made between the duties and powers of police officers and customs officers made in Barkat Ram case as follows : (1) The police is the instrument for the prevention and detection of crime which can be said to be the main object of having the police. The powers of customs officers are really not for such purpose and are meant for checking the smuggling of goo....
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....that by virtue of the first entry in respect of offences against other laws, that is to say, laws other than Indian Penal Code, an offence punishable with imprisonment for a period of three years and upwards but not exceeding seven years is also classified as non-bailable. So also by virtue of entry No. 2 an offence punishable with imprisonment for a period of three years and upwards but not exceeding seven years is also classified as non-bailable. An offence under Section 135 of the Customs Act is in any event punishable with imprisonment of three years and upwards but not exceeding three years. Regardless of the value of goods in any event the offence is punishable with imprisonment for three years. Such being the position the offence is non-bailable. The Court held that sub-section (2) of Section 4 provides that all offences under any law other than the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions (that is to say provisions of the Code of Criminal Procedure), subject to two limitations. In case there is some enactment regulating the manner or place of investigating, inquiring into, trying or otherwise ....
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....lable offence will be sufficient to invoke that provision. In the backdrop of the above referred decision, the Court held that a Magistrate can himself arrest or order any person to arrest any offender if that offender has committed an offence in his presence and within his local jurisdiction or on his appearance or surrender or is produced before him and take that person (offender) into his custody subject to the bail provisions. If a case is registered against an offender arrested by the Magistrate and a follow-up investigation is initiated or if an investigation has emanated qua the accusations levelled against the person appearing or surrendering or being brought before the Magistrate, the Magistrate can in exercise of the powers conferred on him under Section 167(2) keep that offender or person under judicial custody in case the Magistrate is not inclined to admit that offender or person to bail. The Court held that the above deliberation leads to a derivation that to invoke Section 167 (1), it is not an indispensable pre-requisite condition that in all circumstances, the arrest should have been effected only by a police officer and none else and that there must necessarily be....
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....on must assimilate the character of an 'accused person' in the sense that he must be accused of any offence. The Court thought it apposite to note that clauses (1) to (3) of Article 22 which speak of a 'person arrested' use only the word 'person'. Article 22(2) states that 'every person who is arrested and detained in custody...'. A similar expression is used in Section 167(1) of the Code reading, 'Whenever any person is arrested and detained in custody,....'. Thus, while referring to a person arrested and detained neither Article 22 nor Section 167 employs the expression 'accused of any offence'. Discussing the powers of an authorised officer of Enforcement or Customs, the Court held thus :- "113. Though an authorised officer of Enforcement or Customs is not undertaking an investigation as contemplated under Chapter XII of the Code, yet those officers are enjoying some analogous powers such as arrest, seizures, interrogation etc. Besides, a statutory duty is enjoined on them to inform the arrestee of the grounds for such arrest as contemplated under Article 22(1) of the Constitution and Section 50 of the Code. Therefore, they have necessarily to make records of their st....
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....ng investigation under Chapter XII because the investigation is nothing but an observation or inquiry into the allegations, circumstances or relationships in order to obtain factual information and make certain whether or not a violation of any law has been committed. 116. It should not be lost sight of the fact that a police officer making an investigation of an offence representing the State files a report under Section 173 of the Code and becomes the complainant whereas the prosecuting agency under the special Acts files a complaint as a complainant i.e. under Section 61(ii) in the case of FERA and under Section 137 of the Customs Act. To say differently, the police officer after consummation of the investigation files a report under Section 173 of the Code upon which the Magistrate may take cognizance of any offence disclosed in the report under Section 190(1)(b) of the Code whereas the empowered or authorised officer of the special Acts has to file only a complaint of facts constituting any offence under the provisions of the Act on the receipt of which the Magistrate may take cognizance of the said offence under Section 190(1)(a) of the Code. After taking cognizance of the....
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....competent Magistrate. (iv) The expression 'any person' includes a person who is suspected or believed to be concerned in the smuggling of goods. But a person arrested by a Customs Officer because he is found in possession of smuggled goods or on suspicion that he is concerned in smuggling goods not when called upon by the Customs Officer to make a statement or to produce a document or thing, a person accused of an offence within the meaning of Article 20(3) of the Constitution. The steps taken by the Customs Officer are for the purpose of holding an enquiry under the Customs Act and for adjudging confiscation of goods dutiable or prohibited and imposing penalties. The Customs Officer does not at that stage accuse the person suspected of infringing the provision of the Customs Act with the commission of any offence. His primary duty is to prevent smuggling and to recover duties of customs : when collecting evidence in respect of smuggling against a person suspected of infringing the provisions of the Customs Act, he is not accusing the person of any offence punishable at a trial before a Magistrate. (v) Where a Customs Officer arrests a pers....
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....ies and determining the action to be taken in the interest of the revenue of the country by way of confiscation of goods of which no duty has been paid and by imposing penalties and fine. 27. Since the provisions of the Central Excise Act are more or less in pari materia to the above referred provisions of the Customs Act, the said principles would also be squarely applicable to the provisions of the Central Excise Act. 28. From the language employed in Section 13 of the Central Excise Act, it is apparent that the said provisions confer power on the Central Excise Officer to arrest any person subject to the following : (i) he should have reason to believe that such person is liable to punishment under the Act or the rules made thereunder; (ii) such powers can be exercised by a Central Excise Officer not below the rank of Inspector of Central Excise, and (iii) such arrest has to be made with the prior approval of the Commissioner of Central Excise. Thus the power to arrest is a substantive power conferred on the Central Excise Officer which he can exercise subject to fulfillment of the aforesaid three conditions. There is no other pre­condition for arrest of a pe....
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....person making arrest to inform about the arrest, etc. to a nominated person and Section 51 makes provision for search of the arrested persons. Section 52 to 60 of the Code provide for further modalities and procedure in case of arrest of a person. However, the provisions of Section 41 to 60 of the Code only lay down the modalities and procedure for arrest of a person and do not detract from the substantive power of arrest conferred by the statute under Section 13 of the Act. 30. Examining the issue from another angle, as noted hereinabove the arrest under Section 13 of the Act is for investigation/enquiry to fulfill the objects of the Act and not for detection of a crime. If the interpretation canvassed by the learned counsel for the petitioner is accepted, it would render the provisions of Section 13 redundant inasmuch as if a person is to be arrested only after registration of a first information report or lodgment of a complaint, the question of arrest by the Central Excise authorities would not arise. Neither would the question of the Magistrate issuing a warrant arise prior to lodging a complaint. Besides, once an FIR is registered or a complaint is lodged, the person ....
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....nizable offence. The Court held that the case being a non-cognizable case, the Central Excise officers have no powers to that of an Officer Incharge of a Police Station. The Court held that the power of arrest has been enunciated in the Central Excise Act which has also been subjected to power of arrest as enunciated under the Code of Criminal Procedure. The Court held that Section 14 of the Central Excise Act itself mentions that it is in the nature of enquiry and no other person than the police officer under the Code of Criminal Procedure has power to investigate under the Act and no other person under the Excise Act can act as police officer. It was further held that the enquiry conducted by the Central Excise Officer under Section 14 cannot be termed as investigation trial and thus they do not have the powers which in charge officer of a police station or person deputed by the Court for the investigation has. That an officer in charge of a police station can only register an FIR otherwise it will be interference in law. The Court was of the view that the Central Excise Officers cannot register an information as FIR under Section 154(1) of the Code nor can they proceed either un....
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....f the view taken by the Allahabad High Court were to be accepted, under Section 13 as it stands today the Central Excise Officers would not have any power to arrest anybody and consequently the said provision would become redundant. 35. On behalf of the respondent authorities, strong reliance is placed upon the decision of the Punjab & Haryana High Court In Sunil Gupta v. Union of India (supra) wherein the Court upon perusal of the provisions of Section 9(a), 13, 14 and 18 of the Central Excise Act observed thus :- xxxxx Section 9(A) introduces a fiction. As a result, the offences under Section 9 are deemed to be non-cognizable. Section 13 authorises 'any Central Excise Officer duly empowered by the Central Government in this behalf' to 'arrest any person who may he has reason to believe to be liable to be punished under this Act'. This provision embodies a substantive power and authorises the competent officer to arrest a person if he has some reason to belief that the person is liable to be punished under the Act. "The Court was of the view that the proceedings conducted by an officer of the Central Excise are vitally different from the investigation by a police officer. ....