Revenue Relents on Draconian Prosecution Powers, Customs, Excise
Service Tax Limits Raised to Rs. 1 crs, Smuggling and Baggage Cases Rs.
20 lakhs – CBEC Circular
[CBEC Circular No. 27 dated 23rd
October 2015]
Subject – Guidelines for launching of prosecution in relation to offences
punishable under Customs Act, 1962
Attention
of the field
formations is
invited
to the existing prosecution guidelines issued
by the Ministry
vide order No.394/71/97-CUS (AS) dated
22.06.1999 revising the guidelines issued vide order No.711/16/84-CUS (AS) dated 21st
May, 1990 and 20th February, 1992.
2. Since then, several significant changes have been effected in the Customs Act and other relevant enactments. Amendments and changes were made in section 135 of Customs Act, 1962 vide Finance Act, 2007 and Finance Act, 2013 relating to threshold limit/categorization of offences. Moreover, section 137 of Customs Act, 1962, has been amended and provisions of compounding of offences had been
incorporated through Finance
Act, 2004 and Finance Act, 2009. Amendments were
made
in section 104 of the Customs Act, 1962 through Finance Act, 2012 and Finance Act, 2013 wherein certain offences were made cognizable and non-bailable and certain other offences were kept as non-cognizable and bailable. Revised guidelines for arrest and bail were accordingly issued by the Ministry vide order
No.394/68/2013-Cus (AS) dated 17th September, 2013.
3. Keeping in view the
above changes, the
following revised guidelines for
prosecution in relation to offences punishable under Customs Act, 1962 are issued in supersession
of the earlier
guidelines on
launching
prosecution
issued
vide Ministry’s
letter
No. 394/71/97-Cus (AS), dated the 22nd June, 1999.
4. Guidelines for Prosecution:
4.1. Person liable to be prosecuted: As per the provisions of the Customs Act,
1962, prosecution may be
launched against
any person including legal person in
respect
of the offences
covered under any of
the
sections namely
132,133,134, 135,135A or 136 of the Customs Act, 1962.
4.1.1. The decision for launching prosecution should be taken in cases which fulfil
the requirement of the provisions of any of the sections 132,133,134, 135,135A or
136
of the Customs Act, 1962 after a careful consideration of
the nature of
offence,
the
role
of
the person concerned and evidence available to substantiate the guilty
knowledge/mensrea.
4.2. Threshold limit for launching prosecution and exceptions:
4.2.1. Prosecution may be considered in the following categories of cases:
4.2.1.1. Baggage and Outright smuggling cases:
(i) Cases involving unauthorized importation in baggage / cases under Transfer of
Residence Rules, where the CIF value of the goods involved is Rs. 20, 00,000/-
(Rupees
twenty lakh) or more;
(ii) Outright smuggling of high value goods such as precious metal, restricted
items or prohibited items notified under section 11 of the Customs Act, 1962 or goods
notified under section 123 of
the
Customs Act, 1962 or foreign currency where the value of offending goods is
Rs.20,00,000 (Rupees
twenty lakh) or more;
4.2.1.2. Appraising Cases/ Commercial Frauds:
(i) In cases related to importation of trade goods (i.e. appraising cases) involving-
(a) wilful mis-declaration in value/description;
(b) concealment of restricted goods or goods notified under section 11 of the Customs Act, 1962, where CIF value of the offending goods is Rs. 1,00, 00,000 (Rupees one crore)
or more;
(ii) In cases related to fraudulent availment of drawback or
attempt to avail of
drawback or any exemption from duty provided under the Customs Act 1962, if the amount of drawback or exemption from duty is Rs. 1,00, 00,000 (Rupees one crore)
or
more;
(iii) In cases
related to exportation of trade goods (i.e. appraising cases) involving,-
(a)
wilful mis-declaration in value / description ;
(b) concealment of restricted goods or goods notified under section 11 of the
Customs Act, 1962
where FOB value of the offending goods is Rs. 1,00,00,000/- (Rupees one crore) or
more.
4.2.2. Exceptions:
The above threshold limits would not apply in case
of
persons indulging habitually in such
violations or where criminal
intent is evident in ingenious way of
concealment, where
prosecutions can be considered irrespective of the
value of
goods/currency involved in such
professional or habitual offenders, etc. provided the cumulative value of
3 or
more such offences in past five years from
the date of the decision
exceeds the
threshold
limit (s)
indicated at sub
para 4.2.1 above respectively.
4.2.3. Special Cases relating to FICN, arms, ammunitions, wild life etc.:
The threshold limits mentioned in sub para 4.2.1 would also not apply in cases involving offences
relating to items i.e. FICN, arms, ammunitions and explosives,
antiques, art treasures, wild life items and endangered species of flora and fauna.
In such cases, launching of prosecution should be considered invariably, irrespective of
value of offending goods
involved.
4.3. In respect of cases involving non-declaration of foreign currency by foreign
nationals and NRIs (normally visiting India for travel/ business trips etc.) detected at the time of departure back from India, exceeding the threshold limits of Rs. 20 lakh as prescribed under sub-para (4.2) above, if it is claimed that the currency has been legally acquired and brought into India but not declared inadvertently, prosecution
need not
be
considered as a routine. The status and business standing of the foreign
nationals/ NRIs, the manner and place of
recovery, corroborative evidence, if any to
substantiate the
claim
of
bonafide and proper acquisition but inadvertent non- declaration,
and
other
attendant
factors may
be considered immediately and
a decision taken
whether the case involves criminal
intent warranting launching of prosecution or not. Where the prosecution is not considered called for, the case can
be adjudicated by the proper
officer and suitable order for confiscation/ fine / penalty
etc. passed.
4.4. It is mentioned that the quantum of punishment under section 135 of the
Customs Act, 1962 is linked with the amount of imports duty/market price of offending goods/drawback amounts.
However, the
quantum of punishment in respect of the offences covered under remaining sections namely 132,133,134, 135A or 136 of the Customs Act, 1962 is not linked with
the amount of imports duty/market price of
offending goods/ineligible
drawback amount.
In these circumstances,
the
threshold limit for deciding on launching of
prosecution under these sections may be
taken as the value which is applicable for section 135 of the Customs Act, 1962
(refer
to
para
4.2 & 4.3).
4.5. It is clarified that prosecution in respect of
narcotic drugs and psychotropic
substances may be launched as
per
the provisions
of the NDPS Act, 1985.
4.6. Except in respect of cases covered by sub paras 4.2.1.2 and 4.2.2 above, in all
other cases, prosecution may be launched after due sanction by the Commissioner /Principal Commissioner (Pr. Commr.) or
Additional Director General (ADGRI) / Principal Additional Director General of
Revenue Intelligence (Pr. ADGRI), as the case may be. Prior approval of the Chief Commissioner / Principal Chief Commissioner (Principal CC) or Director General / Principal Director General
of Revenue Intelligence (Pr. DGRI), as the case may be, will be essential for launching
of
prosecution in respect of
cases covered under sub paras 4.2.1.2 and 4.2.2 above.
5. The following aspects may also be kept in view while considering launching
of
prosecution for offences
under the Customs Act, 1962:-
5.1. Prosecutions should not be launched as a matter of routine and/or in cases of
technical nature, where the additional claim for duty is based solely on a difference
of interpretation of the law. Before launching any prosecution, it
is
essential that the
department should have sufficient evidence to prove that the person, individual
or company, against whom prosecution is being considered, had guilty knowledge of the offence or had fraudulent intention of committing the
offence, or in any manner possessed mens-rea which would indicate
his
guilt. It follows, therefore, that in the case
of Public Limited Companies,
prosecution should not be launched indiscriminately against all the Directors of the Company, but should be restricted to only such persons who have
taken active part
in
committing, or have connived at, the
offence relating to either of smuggling or of customs duty evasion or of mis- declaration of value, quantity etc.
For this purpose, the Commissioner / Pr. Commr. or ADGRI / Pr. ADGRI should go through the relevant case file thoroughly and
ascertain for themselves that the definite involvement of different
partners/directors/executives/officials, against whom
reasonable evidence about their
involvement in the offence exists and should be proceeded against, while launching the prosecution.
6. Stage for launching of prosecution: Normally, prosecution may be launched
immediately on completion of adjudication proceedings. However,
prosecution in
respect of cases involving offences relating to items i.e. FICN, arms, ammunitions
and
explosives, antiques, art treasures, wild life items and endangered species of flora
and
fauna may preferably be launched immediately after issuance
of show cause notice.
6.1. Further, in following cases investigation may be completed in time bound manner
preferably within six months and adjudication may
be
expedited to facilitate launching of prosecution. These
cases are:
(a) In case where arrest has been made during investigation (for commercial fraud
cases as well as outright smuggling cases) or in the case of a habitual offender.
(b) In case where arrest has not been made but it relates to outright smuggling of
high value goods such as precious metal, restricted items or
prohibited items notified under section 11 or goods notified
under section 123 of the Customs
Act,
1962 or foreign currency where the value of goods is Rs. 20, 00,000 (Rupees twenty lakh) or more.
6.2. In a recent judgement passed by Hon’ble
Supreme Court of India in the case of Radhe Shyam
Kejriwal [2011(266)ELT 294 (SC)], the Apex court had, interalia, observed that (i) adjudication proceedings and criminal proceedings can
be
launched simultaneously;(ii) decision in adjudication proceedings is not
necessary before initiating criminal prosecution;
(iii) adjudication proceedings and criminal
proceedings are independent of each
other in nature and (iv) the findings against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution. In view of aforesaid observations of Hon’ble Supreme Court, it is reiterated that if
the party deliberately delays completion of
adjudication proceedings, prosecution may be launched even during the pendency of
the adjudication proceedings, where offence is grave and qualitative evidences are
available.
6.3. Prosecution need not be kept in abeyance on the ground that the party has
gone in appeal/revision.
However, in order to ensure that the proceeding in
appeal/revision are not unduly delayed because the case record are required for purpose of prosecution, a parallel file containing copies of the essential documents relating to adjudication should be
maintained.
6.4. The Superintendent in charge of adjudication section should endorse copy of
all
adjudication orders to the prosecution section. The Superintendent in charge of prosecution section should
monitor
receipt of all serially numbered adjudication orders and obtain copies of adjudication orders of missing serial
numbers from the
adjudication section every month.
7. Procedure for launching prosecution:
7.1. In all such cases, where prior approval of Chief Commissioner/Principal CC
or DGRI / Pr. DGRI is necessary for launching prosecution, an investigation report
for the purpose
of
launching prosecution (as per Annexure- I), should be carefully prepared and signed
by
the Assistant Commissioner /
Assistant Director concerned.
The
investigation report, after careful scrutiny (for incorporation of all relevant facts) should
be endorsed
by the Commissioner/ Pr. Commr. or
ADGRI/
Pr.
ADGRI. The Chief Commissioner/Principal CC or DGRI / Pr. DGRI should ensure that a decision about launching of prosecution or otherwise, is taken after careful
analysis of evidence available
on
record and communicated to the Commissioner / Principal CC or ADGRI / Pr.
ADGRI within a month of the receipt of
the proposal.
7.2. In all other cases, where prior approval of Chief Commissioner/Principal CC or DGRI / Pr. DGRI is not required, the
decision about launching of prosecution or otherwise
should be
taken by the Commissioner/ Pr. Commr.
or ADGRI
/ Pr. ADGRI after careful application of mind and analysis
of
evidence brought on
record.
This should be completed within a month of adjudication of the case
(unless it is
decided
to
go for prosecution even
prior to adjudication in certain
category of cases mentioned at para 6 above).
7.3. Prosecution should not be
filed merely because a demand
has been confirmed
in
the adjudication proceedings particularly in cases of technical nature or where interpretation of law is involved. One of the important considerations for deciding
whether prosecution should be launched is the availability of adequate evidence.
The
standard of proof required in a criminal prosecution is higher as the case has to be established
beyond reasonable doubt whereas the standard of proof in
adjudication proceedings is decided on the basis of preponderance of probability.
Therefore, even cases where
demand is confirmed in adjudication proceedings,
evidence collected should be weighed so as to likely meet the test of being reasonable doubt
for recommending & sanctioning
prosecution. Decision should be taken
on case- to-
case basis considering various factors,
such as, gravity
of offence, quantum of duty evaded and the nature as well as quality of evidence
collected.
7.4. It is reiterated that in order to avoid delays, Commissioner / Pr. Commr. or ADGRI / Pr. ADGRI / adjudicating authority should indicate, at the time of
passing the adjudication order itself as to whether he considers the case fit for prosecution,
so that it could be further processed for launching prosecution.
Where at the time of adjudication proceedings, no view has been taken on prosecution by the adjudicating authority, the adjudication section shall resubmit the file within 15 days from the days of issue of adjudication order to the adjudicating authority/Commissioner to take
a view of
prosecution.
Where the
prosecution
is proposed before
the adjudication of the case, Commissioner
/Pr. Commr. Or ADGRI / Pr. ADGRI shall
record the reason for the same and the adjudicating authority shall be informed of
the decision so that there is no need for him to examine the case subsequently from the perspective of prosecution.
7.5. It is observed that
the delays in the Court proceedings occur due to the non- availability of records required to be produced before the Magistrate. As a matter
of practice, whenever
a case is taken up for seeking the approval for launching prosecution, an officer should be nominated/designated, who shall immediately take
charge of all documents, statements and other exhibits, that
would be required to be produced before a Court. The list of exhibits etc. should be finalised
in consultation
with the Public Prosecutor at the time of drafting of the complaint.
Such exhibits
should be kept in the safe custody. Where a complaint has not been filed even after
a lapse of three months from the receipt of sanction for prosecution, the reason for delay shall be brought to the notice of Chief
Commissioner/Principal CC or DGRI /
Pr. DGRI by the Commissioner /Pr. Commr. or ADGRI / Pr. ADGRI, as the case
may
be, who are responsible in the case for ensuring the timely filing of the complaint.
8. Publication of names
of
persons convicted
under Customs Act,1962
Section 135-B of
the
Customs Act, 1962, grants the power to publish
name/place of business etc. of persons convicted under the Act by a Court of law.
It
is observed that this power is being exercised very sparingly. In all cases in
respect
of all
persons, who are convicted under the Customs Act, 1962 the
department
should make
a prayer
to
the Court to invoke this section.
9. Monitoring of Prosecution
9.1. It is
emphasized that
prosecution, once
launched,
should
be vigorously followed. The Commissioner /Pr. Commr. or ADGRI/
Pr. ADGRI should monitor cases of prosecution
at monthly intervals and take the corrective action wherever necessary to ensure that the progress of prosecution is satisfactory.
9.2. For monitoring of prosecution cases, a Prosecution Cell should be created in
each Commissionerate
under the supervision of Additional/Joint Commissioner. In case of Directorate of Revenue Intelligence, an Additional/
Joint Director in headquarter/each zonal unit should supervise the prosecution work relating to
headquarters or respective zonal
unit, as the case may
be.
9.3. For keeping track
of prosecution cases launched by the Commissionerate, a prosecution register in the format enclosed as Annexure-II to this Circular
should be maintained in the
Prosecution Cell of each Commissionerate. The register should be
updated regularly and inspected by the Principal Commissioner/
Commissioner at least once in every quarter of the Financial Year. For
keeping track of prosecution
cases launched by DRI, prosecution register in the
similar format as Annexure-II should be maintained in the Zonal Unit / Hqrs
of DRI pertaining to those prosecution cases and similar regular monitoring to
be
carried out by ADGRI/ Pr. ADGRI concerned.
10. Appeal
against Court order
in case of inadequate punishment/acquittal:
10.1. Commissioner / Pr. Commr. responsible for the conduct of prosecution or ADGRI / Pr. ADGRI
(in
respect
of cases booked
by DGRI), should
study the
judgement of the Court and, where it is found that the accused person have been let off with light punishment than
what is envisaged in the Customs Act, 1962 or has
been acquitted despite the evidence being strong, the question of
filing appeals under law
should be considered within the time period.
10.2. The case of acquittal by the Court can be appealed against in terms of section
378(4) of Cr. P.C. by the complainant. In these cases approval
of the Chief
Commissioner/Principal CC
or DGRI / Pr. DGRI as the case may be should be
obtained before filling appeal.
11. Procedure for withdrawal of prosecution
11.1. Procedure for withdrawal of sanction order of prosecution
In cases
where prosecution has been sanctioned but
not filed and new facts or evidences have come
to
the notice of the Commissionerate
or
the DGRI which warrant review of the sanction for prosecution, it should be immediately brought to the notice of
the sanctioning authority. After
considering the new facts and evidences
the sanctioning authority may recommend withdrawal of sanction order to the next
higher authority. In case Commissioner / Pr. Commr.
or ADGRI / Pr. ADGRI is the sanctioning authority, the recommendation will be submitted to Chief Commissioner
/ Principal CC or
DGRI / Pr. DGRI. The recommendation will be submitted to the
Board (Member of
Policy
Wing concerned) in
such cases
where
sanctioning
authority is Chief
Commissioner / Principal CC or DGRI / Pr. DGRI.
All past cases
where filing of prosecution is pending beyond three months of the sanction for prosecution shall
be reviewed in the light
of
these instructions and necessary action
taken to either file complaint expeditiously or to propose withdrawal of sanction.
11.2. Prosecution for withdrawal of Complaint already filed
for prosecution
11.2.1. In cases
where the complaint has already been filed in the court, it will
be
up to the court to decide whether or not to pursue prosecution in terms of section
257 and 321 of Cr. P.C, 1973. If the order for withdrawal has been given by a court, the prosecution can be
withdrawn by the Assistant/ Deputy Commissioner or Assistant/Deputy Director after getting a formal order from
the Chief Commissioner/
Principal CC or DGRI/ Pr. DGRI as the case may be.
11.2.2. As per decision of Hon’ble
Supreme Court in the case of Radhe
Shyam
Kejriwal [2011(266) ELT 294 (SC)]:
(a) the findings in the adjudication proceeding in favour of the person facing trial
for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not
on merit, prosecution may
continue, and
(b) in case of exoneration, however, on merit where allegation is found to be not
sustainable at all and person held innocent, criminal prosecution on the same set
of circumstances cannot
be allowed to continue, underlying principle being the higher standard of proof in criminal cases.
11.2.3. In
respect
of cases
covered under
clause (b) above,
the
Chief Commissioner / Principal
CC or
DGRI/
Pr. DGRI
would ensure moving an
application through Public Prosecutor in the court for withdrawal of prosecution in accordance with law. The withdrawal can only be effected with the approval of the court.
12. Compounding of offence:
Section 137 of Customs Act.1962 provides for compounding of offences by
the Chief Commissioner. The provisions regarding compounding of offence should be brought to the notice of person being prosecuted and such person be given an offer of compounding by the Commissioner / Pr. Commr. or ADGRI / Pr. ADGRI as per
Circular No. 54/2015-Cus.
dated 30.12.2005.
13. Prosecution Register and dissemination
of
information
13.1. A Prosecution Register in the form as Annexed to this circular should be
maintained in the prosecution cell of the
Commissionerate
headquarters/Custom
House / DRI formations. Wherever the prosecution is compounded under section 137
of CA’62
by
the Chief Commissioner, suitable endorsement may be kept in the prosecution register.
13.2. It may be mentioned that offences under section 132 and 135 of the Customs Act, 1962 are scheduled offences under the Prevention of Money Laundering Act, 2002(PMLA). In Customs’ prosecution cases warranting action
under PMLA, instructions
have been issued vide
F. No.394/51/2009-Cus
(AS) dated 14.09.2009 for
monthly reporting of such cases to the
Directorate of Enforcement in the
prescribed format. Once cognizance of complaint in respect of offence under section 132 and
135 of CA’62 filed by the
Department is taken by the court, and reference has been made to the Directorate of Enforcement for taking action under PMLA, suitable
remarks should be made in the
prosecution register. In case, the prosecution under
PMLA is separately proposed to be launched by the Directorate of Enforcement, and
intimation is received to that effect in the prosecution unit of the Commissionerate/
DRI, suitable entry should be kept in the register for appropriate liaison with the
Directorate of Enforcement
and further action as per
the
direction of Special Court.
13.3. Further instructions have been issued vide F. No. 394/124/2011-Cus (AS)
dated 17.07.2012
clarifying that all offences under
Customs Act, 1962 shall be
within the ambit of ‘Plea Bargaining’ and any application for the same shall be
dealt
with
as per
the
provisions in
Chapter
XXIA of
Code
of Criminal Procedure.
Wherever ‘Plea Bargaining’ as per the provisions of chapter
XXIA of Cr Pc is
permitted by
the
competent court, necessary endorsement
may be
made in
the prosecution register for proper record and monitoring.
Similar record may be
kept in respect of
appeal against court order and / or withdrawal
of prosecution as detailed in para 10 to 12 above.
13.4. The field
formations
should upload/update
the
information
regarding prosecution initiated in the Management Information System
(MIS) under prescribed Proforma.
14. Inspection of prosecution work:
Director General (Inspection) and Chief Commissioners/Principal CCs, while
carrying out inspection of
the Commissionerates/Custom
Houses, should specially check all the above mentioned points, and
make
a mention about implementation of the guidelines
in
their Inspection Reports.
15. Transitional Provisions:
All cases, where sanction for prosecution is accorded after the issue of this
circular, shall be dealt in accordance with the provisions of this circular irrespective
of
the date of the offence. Cases where prosecution has been sanctioned but
no complaint has been filed before the magistrate shall also be reviewed by the
prosecution sanctioning authority in light of the provisions
of this circular.
16. Where a case is considered suitable for launching prosecution and where
adequate evidence is forthcoming, securing conviction largely depends on the quality of investigation.
It is, therefore, necessary for senior officers
to
take personal interest
in
investigations of important cases of smuggling/duty evasion and also in respect of
cases having money laundering angle and to provide
guidance and support to the
investigating officers.
17. It has also been noticed that the officers posted for prosecution work do not
have proper training. The Director General, National Academy of Customs Excise
and
Narcotics (NACEN), Faridabad, should therefore, organize separate training courses on prosecution/arrests etc. from time to time and also should incorporate a
series of lectures
on
this issue in the courses organized for anti-smuggling. The
Commissioner / Pr. Commr. or ADGRI / Pr. ADGRI should judiciously sponsor
officers for such courses.
18. The field formations are hereby directed to circulate these guidelines to all the formations under their charge.
Difficulties, if any, in implementation
of the aforesaid guidelines may
be
brought to the notice of the Board.
19. Please acknowledge receipt of this circular.
Annexure – I
Investigation Report
for
the
Purpose of
Launching Prosecution Against__________
Commissionerate__________________
/Divisions
1. Name &
address of the person (s) including legal persons.
2. Nature of offence including commodity:
3. Charges :
4. Date/Period of
offence :
5. Amount of duty Evasion/value of contraband goods involved :
6. Particulars of persons proposed to be prosecuted
:
(a) Name
(b) Father’s name
(c) Age
(d) Address
(e) Occupation Sex
(f) Position held in the company/firm
(g) Role played in the offence
(h) Material evidence available against the accused (Please indicate separately documentary and oral evidence)
(i) Action ordered against the accused in adjudication proceedings
7. Brief note as to why prosecution is recommended
Place:
Date: (Deputy/Assistant Commissioner)
Or (Deputy/Assistant Director
8. I have carefully examined the investigation report and find it in order for filing
criminal complaint under section (s) (-------) of
Customs Act, 1962.
Commissioner/ Pr.
Commr.
Or ADGRI/ Pr. ADGRI
Note
(A) The proposal
should be
made in the above
form
in conformity with the guidelines issued by the Ministry.
With regard to column 3 above, all the
charging sections in the Customs Act, 1962 and other allied Acts should be
mentioned. If the provision for conspiracy as under section 120-B of IPC is
sought to be invoked, this fact should be clearly mentioned.
With regard to
S.NO 6, information should be filed separately for each person sought to be prosecuted .
(B) A copy of the show cause notice as
well as the order of adjudication (where applicable) should be
enclosed with this Report. If any appeal has been filed
against the adjudication order, this
fact should be specifically stated.
(C) Where prosecution is being recommended even
prior to completion of adjudication, as per guidelines, brief reasons therefore be also indicated in
the brief note mentioned at
Sl. No. 7 above
Annexure –
II
Format of Prosecution Register
|
Sl.No. |
Case investigate d by |
Division/preventive unit/
appraising
group/ DRI(Hqr.)/ Zonal
Unit |
File No. |
Criminal
complaint
no. |
Date
of detection/
seizure |
Name
of accused person
being
prosecuted
and
address |
Register
No. |
Nature of
offence |
|
1 |
2 |
3 |
4 |
5 |
6 |
7 |
8 |
9 |
|
Amount of duty/ seizure/ value
confirmed & O-I-O No. |
Period of
evasion |
Date
of sanction of prosecution |
Date
of Filling of
complaint |
Date
of taking cognizance by court |
Name of counsel |
|
10 |
11 |
12 |
13 |
14 |
15 |
|
Date of judgement |
Appeal
status-date/court in
which filed |
Date of hearing |
Date
of referral to
Directorate of Enforcement |
Remarks/signature
with name and date (Officer filing
the complaint) |
|
16 |
17 |
18 |
19 |
20 |
[CBEC Circular No. 28 dated 23rd October
2015]
Subject
– Revised Guidelines
for Arrest and Bail
in relation
to offences
punishable
under Customs Act, 1962.
Attention of the field formations is invited to
the guidelines for arrest and bail in relation to
offences punishable under Customs Act, 1962 issued vide F. No. 394/71/97-Cus (AS)
dated 22.06.1999 and F. No. 394/68/2013-Cus (AS) dated 17.09.2013. The
threshold limit (s)
specified in the guidelines issued on 17.09.2013 has been further streamlined in accordance
with guidelines issued for launching of prosecution in relation to offences punishable under Customs
Act, 1962 vide Circular No. 27/2015-Customs [F.No.394/68/2013-Cus (AS)] dated
23.10.2015.
2. Accordingly, the para 2.3 of the existing guideline
issued vide F. No. 394/68/2013- Cus (AS)
dated 17.09.2013 shall read
as under:-
“2.3 While the Act does not specify any value limits for exercising the powers of arrest, it is clarified
that arrest in respect
of an offence,
should be effected only in exceptional
situations which
may
include:
(a) Cases involving unauthorised importation in baggage/ cases under Transfer of
Residence Rules, where the CIF value of the goods involved is Rs. 20,00,000/-
(Rupees Twenty Lakh)
or more;
(b) Cases
of outright smuggling of high
value goods such as
precious
metal, restricted items or
prohibited items or goods notified under
section 123 of the
Customs Act, 1962 or offence involving foreign currency where the value of offending goods is
Rs. 20,00,000/- (Rupees Twenty Lakh)
or more;
(c) In a case related to importation of trade goods (i.e. appraising cases) involving wilful mis-declaration
in description of goods/concealment
of goods/goods
covered under section 123 of Customs Act, 1962 with a view to import restricted or prohibited items and
where
the CIF value of the offending goods
is Rs.
1,00,00,000/- (Rupees
one
crore) or more;
(d) Fraudulent availment of drawback or attempt to avail of drawback or any
exemption from duty
provided under the Customs Act, 1962, if the amount of drawback or exemption from duty
is Rs. 1,00,00,000/- (Rupees One Crore) or
more. In cases related to exportation of trade goods (i.e. appraising
cases)
involving (i) wilful mis-declaration in value / description
; (ii) concealment of
restricted goods or
goods notified under section 11 of the
Customs Act, 1962, where FOB value of the offending goods is Rs. 1,00,00,000/- (Rupees One Crore) or more.
(e) The above criteria of value mentioned in sub para 2.3 (a) to 2.3 (d) would not
apply
in cases involving offences relating to items i.e. FICN, arms, ammunitions and explosives, antiques, art treasures, wild life
items and endangered species of flora
and
fauna. In such cases, arrest, if required, on the basis of facts and circumstances of the case, may be considered irrespective of value of offending goods
involved.”
3. The Chief Commissioners/Director Generals are hereby
directed to circulate the present
guidelines to all the formations under
their charge. Difficulties, if any, in implementation
of the aforesaid guidelines
may be brought to
the notice of the
Board.
FormatMonthly Report on Persons Arrested under the Customs Act, 1962(excluding NDPS Act) in a Zone
SNo. |
Name, Designation and Age of the person arrested |
Date of arrest (dd/mm/yyyy) |
Commissionerate/ DRI Concerned (Location Code) |
Description and Value of the seized/ detained goods (Rs. in crores) |
Amount of Duty evaded (Rs. in crores) |
Role in evasion/ smuggling of goods and nature of evidence collected |
Appraising case/ outright smuggling case |
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Total |
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Enclosure to the Circular No. 28/2015-Customs dated 23.10.2015 issued vide F.No. 394/68/2013-Cus (AS)