Enquiry / Interrogation / Investigation - Central Excise Practice Manual (OLD) - Central Excise

ENQUIRY/ INVESTIGATION/ INTERROGATION Visit and inspection As per section 22(1) of CEA, any officer not below the rank of Inspector empowered by commissioner shall have access to any premises registered under central excise for the purpose of carrying out any scrutiny, verification and checks in order to safeguard the interest of revenue. Visit and inspection is not a search. Following points shall be noted: - · The officers should be in uniform and carry their identity card which should shown when demanded. If they do not carry the identity cards, it will be justifiable if the entry is denied to them. · The inspection can be done of registered premises only. · The officer should make an entry in the 'visit book' maintained in prescribed format. · The assessee is required to produce books of accounts, records and returns for scrutiny by excise officer. Enquiry through issue of 'Summons' - Section 14 of the central excise act empowered the excise officers to issue summons i.e. asking any official of an assessee to appear before the named authority for the purposes of giving evidence or producing documents in any enquiry under the act. Following have to be noted: - · Excise officers of Superintendent and above rank are empowered to issue summons. · Person summoned is bound to attend and state the truth. If any difficulty occurred in attending to the summons on the fixed date, a suitable reply and request for an alternate date to appear must be sought for. · Summons for documents should specify which documents are required. Where documents for 3/ 4 years are very bulky which runs into thousand of pages, request must be made in regard to production of copies of such records/ registers if that could serve the purpose. · Normally summons is not issued to directors of the company except where assessees are not cooperating or investigations are to be completed expeditiously. Statement of assessee after issue of summon - Statement can be recorded during such enquiry (i.e. during summon) or during search and seizure operations before a gazetted officer not below the rank of Superintendent. These statements may be relied upon by the department at the time of issue of show cause notice. · It should be in writing, signed by the maker in order to safeguard the interest of the maker as well as department. · Statement should be voluntary and not under threat. However, the person should be told that he is bound to tell the truth and if he does not tell the truth, he may be prosecuted under section 193 of IPC for giving false evidence. This does not amounts to threat, the threat comes from the statue itself. · While recording the statement or interrogation, the assessee has no right to ask for his advocate's presence by his side and if allowed to do so, the advocate cannot interrupt the investigations. · The assessee has no right to get copies of his statement at the stage of investigation but he can keep a note of statement that he makes. · Where statement is extracted through coercive and objectionable methods, the person giving the statement shall immediately send a notice of retraction of his statement explaining the grounds. If the notice of retraction is not given immediately but after the issue of show cause notice or after considerable lapse of time, such retraction will not be entertained. Proceedings after the summons are 'judicial proceedings' within the meaning of sections 193 and 228 of IPC. Enquiry by way of 'Arrest' - As per section 13 of Central Excise Act, any Central Excise Officer not below the rank of Inspector with prior approval of the Commissioner can arrest any person whom he has reason to believe that he is liable to punishment under the Central Excise Act or Rules. As per section 50 or code of criminal procedure Person arrested should be informed full particulars of offence and his rights about bail. As per section 57 of code of criminal procedure, arrested person should be taken to magistrate within 24 hours of the arrest. As per section 155 of code of criminal procedure, investigation can be made only with order of Magistrate. Section 13 of CEA confers power to central excise officers to investigate a non-cognizable offence without a warrant of arrest. As per section 167(2) of code of criminal procedure, a person can be kept in judicial custody for 60 days i.e. if investigations are not completed within 60 days, the person arrested should be released on bail. Enquiry after arrest The excise officer can also make enquiry even after arrest. Statements made before excise officers even after arrest can be used as evidence in further proceedings against accused.