CBEC issues Guidelines for launching of Prosecution in relation to Offences Punishable under Customs Act [Read Circular]
By Taxscan Team - On March 7, 2017 10:54 am - 3 mins read
The Central Board of Excise and Customs, recently revised the guidelines for launching of prosecution in relation to offences punishable under the Customs Act, 1962.
The circular stated that in spite of guidelines, launching of prosecution / completion of prosecution proceedings gets delayed in several cases.
“Reportedly, one of the factors leading to delays in launching of prosecution is lack of clarity regarding the role of Directorate General of Revenue Intelligence (DGRI) vis-à-vis Customs field formations as to who should submit the investigation report and who should launch prosecution.”
The major amendments to the earlier circulars are the following;
Prosecution cannot be launched merely on ground of confirmation of demand in the adjudication proceedings which involves cases of technical nature or an interpretation of law. Availability of adequate evidence should be the basis for prosecution.Even in 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.
The adjudicating authority, at the time of passing adjudication order should indicate that whether the case is fit for prosecution. This is with a view to avoid further delays in 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 day of issue of adjudication order to the adjudicating authority/Commissioner to take a view regarding 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.
In respect of cases investigated by DGRI, the adjudicating authority would intimate the decision taken regarding fitness of the case for prosecution to the Principal Additional Director General/ Additional Director General of the Zonal Unit or Headquarters concerned, where the case was investigated and /or show cause notice issued. The respective officer of DGRI concerned shall prepare an investigation report for the purpose of launching prosecution, within one month of the date of receipt of the decision of the adjudicating authority and would send the same to the Director General, DGRI for taking decision on sanction of prosecution. The format of investigation report is annexed as Annexure-I to this Circular. The 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 ADGRI / Pr. ADGRI concerned within a month of the receipt of the proposal.
In respect of cases not investigated by DGRI, where the Principal Commissioner/Commissioner who has adjudicated the case is satisfied that prosecution should be launched, an investigation report for the purpose of launching prosecution should be carefully prepared within one month of the date of issuance of the adjudication order. Investigation report should be signed by an Assistant/Deputy Commissioner, endorsed by the jurisdictional Principal Commissioner/Commissioner and sent to the Principal Chief/ Chief Commissioner for taking a decision on sanction for launching prosecution. The format of investigation report is annexed as Annexure-I to this circular. The Chief Commissioner/Principal CC 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 within a month of the receipt of the proposal.
On launching of prosecution, the officer should file a criminal complaint in the court of law. The officer not below the rank of Superintendent of the jurisdictional Commissionerateauthorized by the Commissioner can file complaint.
It is observed that 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 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.
