Guidelines for launching of prosecution in relation to offences punishable under Customs Act, 1962

Central Board of Excise & Customs has on 06.03.2017 issued circular "Guidelines for launching of prosecution in relation to offences punishable under Customs Act, 1962" which  is reproduced as under

Circular No. 07/2017 - Customs

F.No. 394/68/2013-Cus (AS)

Government of India

Ministry of Finance

Department of Revenue

Central Board of Excise & Customs

(Anti-Smuggling Unit)

***

New Delhi, the 6th March, 2017

To

1.      All Principal Chief/Chief Commissioners of Customs/  Customs (P)/Customs & Central Excise,

2.      All Principal Directors General/ Directors General of CBEC,

3.      All Principal Commissioners / Commissioners of Customs/ Customs (P)/ Customs & Central Excise,

4.      Chief Commissioner (Authorised Representative – CESTAT),

5.      Settlement Commission,

6.      Webmaster, CBEC

Subject– Guidelines for launching of prosecution in relation to offences punishable under Customs Act, 1962- reg.

Sir/Madam,

I am directed to invite the attention of the field formations to the prosecution guidelines issued by the Ministry vide Circular No. 27/2015-Customs dated 23.10.2015 (further amended vide Circular No. 46/2016-Customs dated 04.10.2016) revising the guidelines issued vide order No.394/71/97-CUS (AS) dated 22.06.1999.

2.         The earlier prosecution guidelines of 1999 as well as the new prosecution guidelines issued in 2015 contain various references to avoid any undue delays in the launching of prosecution or completion of prosecution proceedings. However, it has been observed that in spite of guidelines in this regard, launching of prosecution / completion of prosecution proceedings gets delayed in several cases. The delay in launching of prosecution has also been pointed out by the Comptroller & Auditor General of India in its report recently.

3.         In this regard certain difficulties were brought to the notice of the Board. 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.

4.         Board has examined the matter. Accordingly, for the sake of clearly defining the role of DGRI vis-à-vis Customs field formations so that any delays on this account can be prevented, Paras 7.1 to 7.5 of the prosecution guidelines issued by the Ministry vide Circular No. 27/2015-Customs dated 23.10.2015 are substituted by the following paras:

“7.1 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.

7.2 It is reiterated that in order to avoid delays, the adjudicating authority should indicate, at the time of passing the adjudication order itself (on file and not in the adjudication order) 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 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.

7.3 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.

7.4 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.

7.5 Once the sanction for prosecution has been obtained, criminal complaint in the court of law should be filed as early as possible by an officer not below the rank of Superintendent of the jurisdictional Commissionerate authorized by the Commissioner.

7.6 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.

5.         The field formations are hereby requested to circulate these amendments 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.

6.         Hindi version follows.

Yours faithfully,

Encl: As above.

(Rohit Anand)

Under Secretary to the Government of India

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__________________ Sex________________

(d) Address

(e) Occupation

(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

ANNEXURE – I (contd.)

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.

Petition to His Excellency The President of India to release the socio economic Caste Census Data-11

Representation of Amode India to His Excellency The President of India

Date: 24.08.2015

To,
His Excellency The President of India
Rashtrapati Bhawan
New Delhi – 110001

His Excellency,

First of all we would like to introduce ourselves that we are working for the downtrodden, neglected, deprived sections of the society of this country. Pursuant to the debates in the Loksabha on 6th and 7th May 2010 the Government of India in 2011 decided to conduct the Socio Economic Caste Census in India by providing financial and technical support to the States. As per media reports approximately Rs.3,500/- crore of rupees has been spent to collect the said data. The said caste data is now with the Government of India or its agencies. Once the data has been collected on the direction of the government with the people’s money of this country, that should have been put before the people without any hesitation. A large number of people, several political parties and several important personalities have demanded to put the data in public domain.

Our organization has held a Conference on 22nd August , 2015, on the topic “Constitutional Mandate to Preserve Unity in Diversity & Caste Census Data – 2011” at Speaker Hall, Constitution Club, Vithal Bhai Patel Houses, Rafi Marg, New Delhi – 110001 and discussed the issue at length. 

Large number of intellectual people like Advocates, professors, Journalists, students, Doctors etc. attended the above said conference. The said Conference was presided over by Shri S. S. Nehra, Advocate, Supreme Court of India & well known social and Human Rights activist. Among other who put their views were Shri Raghu Thakur, renowned Socialist thinker, Ex.-All India General Secretary of Janta Dal and Samajwadi Party; Shri P.I. Jose, Advocate Supreme Court of India and Social activist; Dr. Manzoor Alam, Chairman, Institute of Objective Studies; Shri Anil Chamdia, renowned Journalist; Shri Dr. K.S. Bhati former Registrar of Indian Law Institute and Former Member of the Executive Council of Delhi University; Mr. Balev Sihag, Journalist and Dr. (Prof.) Kedar Prasad Meena expressed their views. A resolution was also passed in the conference requesting the Govt. of India to release the said Caste Census data in original shape at the earliest before the people of India. A copy of the resolution is annexed herewith. 

We, therefore, humbly request His Excellency to impress upon the Government of India to release the socio economic Caste Census Data at the earliest. 

With Highest Regards.

S. S. Nehra,

Advocate

For AMODE

Petition to The Prime Minister of India to release the socio economic Caste Census Data-11

Representation of Amode India to Hon’ble The Prime Minister of India

Date: 24.08.2015

To,
Hon’ble The Prime Minister of India
Government of India,
New Delhi – 110001

Hon’ble The Prime Minister,

First of all we would like to introduce ourselves that we are working for the downtrodden, neglected, deprived sections of the society of this country. Pursuant to the debates in the Loksabha on 6th and 7th May 2010 the Government of India in 2011 decided to conduct the Socio Economic Caste Census in India by providing financial and technical support to the States. As per media reports approximately Rs.3,500/- crore of rupees has been spent to collect the said data. The said caste data is now with the Government of India or its agencies. Once the data has been collected on the direction of the government with the people’s money of this country, that should have been put before the people without any hesitation. A large number of people, several political parties and several important personalities have demanded to put the data in public domain.

Our organization has held a Conference on 22nd August , 2015, on the topic “Constitutional Mandate to Preserve Unity in Diversity & Caste Census Data – 2011” at Speaker Hall, Constitution Club, Vithal Bhai Patel Houses, Rafi Marg, New Delhi – 110001 and discussed the issue at length. 

Large number of intellectual people like Advocates, professors, Journalists, students, Doctors etc. attended the above said conference. The said Conference was presided over by Shri S. S. Nehra, Advocate, Supreme Court of India & well known social and Human Rights activist. Among other who put their views were Shri Raghu Thakur, renowned Socialist thinker, Ex.-All India General Secretary of Janta Dal and Samajwadi Party; Shri P.I. Jose, Advocate Supreme Court of India and Social activist; Dr. Manzoor Alam, Chairman, Institute of Objective Studies; Shri Anil Chamdia, renowned Journalist; Shri Dr. K.S. Bhati former Registrar of Indian Law Institute and Former Member of the Executive Council of Delhi University; Mr. Balev Sihag, Journalist and Dr. (Prof.) Kedar Prasad Meena expressed their views. A resolution was also passed in the conference requesting the Govt. of India to release the said Caste Census data in original shape at the earliest before the people of India. A copy of the resolution is annexed herewith. 

We, therefore, humbly request your Honour to release the socio economic Caste Census Data at the earliest. 

With Highest Regards. 

S. S. Nehra,

Advocate

For  AMODE

Conference on 22nd of August 2015 (Saturday) 2. 30 PM to 5.30 PM. “Constitutional mandate to preserve unity in diversity & Caste Census-2011” Speaker Hall of the Constitution Club, Rafi Marg, New Delhi- 110001

                                                                     

Conference on 22^nd of August 2015 (Saturday)  2. 30 PM to 5.30 PM.

“Constitutional mandate to preserve unity in diversity & Caste Census-2011”

Speaker Hall of the Constitution Club, Rafi Marg, New Delhi- 110001

Respected sir / Madam,

We are pleased to present warm greetings to you on behalf of AMODE movement. A group of Advocates of the Supreme Court of India and other likeminded people had formed the above said people’s movement. Our ideology and motto is to serve and work as per the Indian Constitutional mandate for the emancipation, amelioration and empowerment of the Adivasi, Minority, Other Backward Class, Dalit and Economically weaker sections of the Indian society.

On behalf of our movement, we had been conducting programmes and meetings in Delhi. In continuance of our service towards the nation building by considering the inclusive growth, for giving due representation to the above said communities for their socio, educational, political and sustainable development, we are organising a programme under the topic, “Constitutional mandate to preserve unity in diversity & Caste Census data- 2011” on 22^nd of August 2015 (Saturday) from 2. 30 PM to 5.30 PM. at Speaker Hall of the Constitution Club, Rafi Marg, New Delhi- 110001.

We are pleased to beseech you to grace the occasion and participate in the above said function. Your solidarity and support for the secular and socialist vision, which you hold as basic principle, will take the movement forward with right attitudes and ideology.

Thanking you

Yours sincerely

On behalf of AMODE movement

Founder-Core team Member.

AMOD CHARTER

AMODE movement is an initiative of a group of advocates of the supreme court of India along with other concerned citizen groups to organise and empower under privileged sections of the society through scientific study of causes for their continued state of subhuman living and thereby to find solutions sustainable under Indian conditions. In its functioning AMOD shall be guided by its Charter.

AMOD CHARTER

We, the Adivasi, Minority, OBC and Dalit  (AMOD) people of India determined to liberate ourselves from the evils of caste discrimination and  communal politics for dominance designed and played by creating enmity and violence among us;

While reaffirming faith in fundamental human rights and in the dignity and worth of every human person;

To establish conditions under which justice and respect for the obligations arising from the Constitution of India and other laws and social conduct can be maintained;

And to promote among ourselves educational, economic and socio-political progress and standards of life as comparable to that of other communities of India;

DO HEREBY COME TOGETHER TO PEACEFULLY AND DEMOCRATICALLY ADVOCATE, AGITATE AND ACT FOR THE FOLLOWING:

1.       AMODE bears true faith and allegiance to the Constitution of India; to the principles of socialism, secularism and democracy; uphold the sovereignty, unity and integrity of India and shall promote justice, liberty, equality and fraternity among its people.

2.       Promote learning and dialogue through sharing of knowledge and experience among AMODE people  and educate, enlighten and empower them against being used as tools for perpetrating violence against one another by politically motivated divisive forces.

3.       Strive towards eradication of every form of exclusion and discrimination; and remove mistrust from the minds of AMODE people against one another by Promoting fraternity and friendly relation among them.

4.       Unite AMODE people by promoting composite culture, regional languages, ethnicity and heritage of socialist secular diverse India as mandated by the Constitution of India.

5.       Promote secular and equal education at all levels.

6.       Promote social justice with adequate representation. To ensure this AMODE shall strive to bring in a Constitutional provision that mandates a minimum of 50% proportional representation in all levels of public offices in the legislative,  executive and the Judiciary for every community as well as a restriction for  a maximum of not more than 200%.

7.       For a dignified human life demand fixation of minimum wage to unorganised sector labourers in a scientific manner so that they can acquire a house of 600 Sq.Ft./ 700 Sq.Ft./ 900 sq ft respectively in metros/ cities / villages of their employment by paying 30% of basic wage for 15 years; and bring to justice exploiters of contract labourers and help them to get actual wages provided by the govt/ public sector undertakings.

8.       Farmers should be provided subsidised seed, fertiliser and agricultural tools and fixation of minimum support price for all agricultural products in a scientific manner.

9.       Empower AMODE people for claiming due share in the development process and distribution of common resources of the country.

10.  Strive for eradication of poverty and provision for pure drinking water     (minimum of 20 Ltr per household (4 persons) per day in addition to other house hold water requirements) and unpolluted air for all.

11.  Strive for fraternity and friendly relations with all people and communities and maintain social harmony.

12.  Promote rationalist and scientific attitude towards life and its problems and fight against all forms of superstition, corruption and oppression.

************

An inquiry may be instituted (Sonia Gandhi faces complaint for penalty proceedings for blocking RTI enforcement)

Efforts of Mr. R. K. Jain, Advocate:- Sonia Gandhi faces complaint for penalty proceedings for blocking RTI enforcement

1.  Full Bench of Central Information Commission vide its order dated 3-6-2013, held six political parties, Congress, BJP, BSP, NCP, CPM and CIP, as public authority under RTI Act and directed their Presidents/General Secretaries to designate CPIOs and First Appellate Authorities for their parties within 6 weeks and to provide information to the Complainants within 4 weeks. CIC also directed them to make voluntary disclosure of information under Section 4(1) (b) of the RTI Act.

2.   None of the Political Parties challenged the said order nor they implemented it showing that they are above law. The CIC on its part also dragged its feet when a complaint for non-compliance of its order was filed in August, 2013. The complaint was neither registered nor taken up for action/hearing, till Media recently highlighted the indifferent attitude of the political parties and the CIC in matter of larger public interest for bringing transparency and accountability in the working of the political parties and to contain corrupt practices in our political system and administration by bringing transparency and accountability at the door step of our major Political Parties.

3.  Surprisingly, the records of the said case are stated to have been missing from the CIC as also reported in Times of India dated 14-2-2014.

4.  Last week, Mr. R. K. Jain, Advocate had filed RTI applications with all these 6 political parties seeking details of their membership, domestic and international contributions received by them, election/nomination to their executive committees and compliance to the RTI Act and aforesaid decision of CIC.

5.  The Congress party (INC/AICC) has refused to accept the RTI application as they are stated to have not so far appointed any CPIO. On such refusal, Mr. R. K. Jain, Advocate had filed a Complaint to the CIC for initiation of penalty proceedings u/s 18, 19 (8) and 20 of the RTI Act against Mrs. Sonia Gandhi, President of INC/AICC for non-appointment of CPIO despite specific directions of CIC. Copy of the said complaint is attached.

6.      Mr. R K Jain has prayed for:-

a.   An inquiry in to the above matter may be instituted under Section 18 (2) of the RTI Act, 2005.

b.   Summoning of the original Records relating to the information sought.

c.   The penalty to be imposed on Smt. Sonia Gandhi, President of INC/AICC and the CPIO of INC/AICC under Section 20(1) of the RTI Act for knowingly, malafidely and persistently not appointing the CPIO and the First Appellate Authority under RTI Act despite the specific directions given in Full Bench decision dated 3.6.2013 of the CIC and provisions of RTI Act, thereby causing obstruction to the information without any reasonable cause.

d. The penalty be imposed on the respondents under Section 20(1) of the RTI Act for deliberately and malafidely refusing to accept the RTI application in question of the complainant and thereby causing obstruction to information without any reasonable cause.

e.  Penal actions provided u/s 2 0 of the RTI Act may also be taken against the respondents as they have knowingly, malafidely and persistently obstructed the information, without any reasonable cause and have withhold the information with malafide intent and purpose.

Copy of the complaint:-

Sonia Gandhi faces complaint for penalty proceedings for blocking RTI enforcement

Efforts of Mr. R. K. Jain, Advocate:- Sonia Gandhi faces complaint for penalty proceedings for blocking RTI enforcement

1.  Full Bench of Central Information Commission vide its order dated 3-6-2013, held six political parties, Congress, BJP, BSP, NCP, CPM and CIP, as public authority under RTI Act and directed their Presidents/General Secretaries to designate CPIOs and First Appellate Authorities for their parties within 6 weeks and to provide information to the Complainants within 4 weeks. CIC also directed them to make voluntary disclosure of information under Section 4(1) (b) of the RTI Act.

2.   None of the Political Parties challenged the said order nor they implemented it showing that they are above law. The CIC on its part also dragged its feet when a complaint for non-compliance of its order was filed in August, 2013. The complaint was neither registered nor taken up for action/hearing, till Media recently highlighted the indifferent attitude of the political parties and the CIC in matter of larger public interest for bringing transparency and accountability in the working of the political parties and to contain corrupt practices in our political system and administration by bringing transparency and accountability at the door step of our major Political Parties.

3.  Surprisingly, the records of the said case are stated to have been missing from the CIC as also reported in Times of India dated 14-2-2014.

4.  Last week, Mr. R. K. Jain, Advocate had filed RTI applications with all these 6 political parties seeking details of their membership, domestic and international contributions received by them, election/nomination to their executive committees and compliance to the RTI Act and aforesaid decision of CIC.

5.  The Congress party (INC/AICC) has refused to accept the RTI application as they are stated to have not so far appointed any CPIO. On such refusal, Mr. R. K. Jain, Advocate had filed a Complaint to the CIC for initiation of penalty proceedings u/s 18, 19 (8) and 20 of the RTI Act against Mrs. Sonia Gandhi, President of INC/AICC for non-appointment of CPIO despite specific directions of CIC. Copy of the said complaint is attached.

6.      Mr. R K Jain has prayed for:-

a.   An inquiry in to the above matter may be instituted under Section 18 (2) of the RTI Act, 2005.

b.   Summoning of the original Records relating to the information sought.

c.   The penalty to be imposed on Smt. Sonia Gandhi, President of INC/AICC and the CPIO of INC/AICC under Section 20(1) of the RTI Act for knowingly, malafidely and persistently not appointing the CPIO and the First Appellate Authority under RTI Act despite the specific directions given in Full Bench decision dated 3.6.2013 of the CIC and provisions of RTI Act, thereby causing obstruction to the information without any reasonable cause.

d. The penalty be imposed on the respondents under Section 20(1) of the RTI Act for deliberately and malafidely refusing to accept the RTI application in question of the complainant and thereby causing obstruction to information without any reasonable cause.

e.  Penal actions provided u/s 2 0 of the RTI Act may also be taken against the respondents as they have knowingly, malafidely and persistently obstructed the information, without any reasonable cause and have withhold the information with malafide intent and purpose.

Copy of the complaint:-