Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
(Anti-Smuggling Unit)
Circular No. 07/2017 - Customs
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 (Authorized 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 23rd Oct 2015 (further amended vide Circular
No. 46/2016-Customs dated
04th Oct, 2016) revising the guidelines issued vide order No. 394/71/97-CUS (AS)
dated 22nd June, 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 23rd Oct, 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.
Encl: As above.
Yours faithfully,
(Rohit Anand)
Under Secretary to the Government of India
[F. No. 394/68/2013-Cus (AS)]
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 :
- Name
- Father’s name
- Age__________________ Sex________________
- Address
- Occupation
- Position held in the company/firm
- Role played in the offence
- 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
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