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TMI BlogInspection, Search, Seizure and ArrestX X X X Extracts X X X X X X X X Extracts X X X X ..... upon a written authorization given by an officer of the rank of Joint Commissioner or above. A Joint Commissioner or an officer higher in rank can give such authorization only if he has reasons to believe that the person concerned has done one of the following: i. suppressed any transaction of supply; ii. suppressed stock of goods in hand; iii. claimed excess input tax credit; iv. contravened any provision of the CGST/SGST Act to evade tax; v. a transporter or warehouse owner has kept goods which have escaped payment of tax or has kept his accounts or goods in a manner that is likely to cause evasion of tax. Q 4. Can the proper officer authorize Inspection of any assets/premises of any person under this Section? Ans. No. Authorization can be given to an officer of CGST/ SGST to carry out inspection of any of the following: i. any place of business of a taxable person; ii. any place of business of a person engaged in the business of transporting goods whether or not he is a registered taxable person; iii. any place of business of an owner or an operator of a warehouse or godown. Q 5. Who can order for Search and Seizu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vii. period of validity i.e. a day or two days etc. Q 9. When do goods become liable to confiscation under the provisions of CGST/SGST Act? Ans. As per section 130 of SGST/SGST Act, goods become liable to confiscation when any person does the following: (i) supplies or receives any goods in contravention of any of the provisions of this Act or rules made thereunder leading to evasion of tax; (ii) does not account for any goods on which he is liable to pay tax under this Act; (iii) supplies any goods liable to tax under this Act without having applied for the registration; (iv) contravenes any of the provisions of the CGST/ SGST Act or rules made thereunder with intent to evade payment of tax. Q 10. What powers can be exercised by an officer during valid search? Ans. An officer carrying out a search has the power to search for and seize goods (which are liable to confiscation) and documents, books or things (relevant for any proceedings under CGST/SGST Act) from the premises searched. During search, the officer has the power to break open the door of the premises authorized to be searched if access to the same is denied. Similarl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the witnesses, the in-charge/ owner of the premises before whom the search is conducted and also by the officer(s) duly authorized for conducting the search. After the search is over, the search warrant duly executed should be returned in original to the issuing officer with a report regarding the outcome of the search. The names of the officers who participated in the search may also be written on the reverse of the search warrant. The issuing authority of search warrant should maintain register of records of search warrant issued and returned and used search warrants should be kept in records. A copy of the Panchnama / Mahazar along with its annexure should be given to the person in- charge/owner of the premises being searched under acknowledgement. Q 13. Can a CGST/SGST officer access business premises under any other circumstances? Ans. Yes. Access can also be obtained in terms of Section 65 of CGST/SGST Act. This provision of law is meant to allow an audit party of CGST/SGST or C AG or a cost accountant or chartered accountant nominated under section 66 of CGST/SGST Act, access to any business premises without issuance of a search warrant for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e retained beyond the period necessary for their examination; ii. Photocopies of the documents can be taken by the person from whose custody documents are seized; iii. For seized goods, if a notice is not issued within six months of its seizure, goods shall be returned to the person from whose possession it was seized. This period of six months can be extended on justified grounds up to a further period of maximum six months; iv. An inventory of seized goods shall be made by the seizing officer; v. Certain categories of goods to be specified under CGST Rules (such as perishable, hazardous etc.) can be disposed of immediately after seizure; vi. Provisions of Code of Criminal Procedure 1973 relating to search and seizure shall apply. However, one important modification is in relation to sub-section (5) of section 165 of Code of Criminal Procedure instead of sending copies of any record made in course of search to the nearest Magistrate empowered to take cognizance of the offence, it has to be sent to the Principal Commissioner/ Commissioner of CGST/ Commissioner of SGST. Q 18. Is there any special document required to be carried during transport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en note of is section 57 of Cr.P.C., 1973 which provides that a person arrested without warrant shall not be detained for a longer period than, under the circumstances of the case, is reasonable but this shall not exceed twenty-four hours (excluding the journey time from place of arrest to the Magistrate s court). Within this period, as provided under section 56 of Cr.PC. the person making the arrest shall send the person arrested without warrant before a Magistrate having jurisdiction in the case. In a landmark judgment in the case of D.K. Basu v. State of West Bengal reported in 1997 (1) SCC 416, the Hon ble Supreme Court has laid down specific guidelines required to be followed while making arrests. While this is in relation to police, it needs to be followed by all departments having power of arrest. These are as under: i. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. ii. The police officer carrying out the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... errogation. x. A police control room should be provided at all district and State headquarters where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. Q 23. What are the broad guidelines for arrest followed in CBEC? Ans. Decision to arrest needs to be taken on case-to- case basis considering various factors, such as, nature and gravity of offence, quantum of duty evaded or credit wrongfully availed, nature and quality of evidence, possibility of evidences being tampered with or witnesses being influenced, cooperation with the investigation, etc. Power to arrest has to be exercised after careful consideration of the facts of the case which may include: i. to ensure proper investigation of the offence; ii. to prevent such person from absconding; iii. cases involving organized smuggling of goods or evasion of customs duty by way of concealment; iv. master minds or key operators effecting proxy/ benami imports/exports in the name of dummy or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued the summon upon any subject which is the subject matter of examination and to produce such documents and other things as may be required. Q 29. What can be the consequences of non- appearance to summons? Ans. The proceeding before the official who has issued summons is deemed to be a judicial proceeding. If a person does not appear on the date when summoned without any reasonable justification, he can be prosecuted under section 174 of the Indian Penal Code (IPC). If he absconds to avoid service of summons, he can be prosecuted under section 172 of the IPC and in case he does not produce the documents or electronic records required to be produced, he can be prosecuted under section 175 of the IPC. In case he gives false evidence, he can be prosecuted under section 193 of the IPC. In addition, if a person does not appear before a CGST/ SGST officer who has issued the summons, he is liable to a penalty up to ₹ 25,000/- under section 122(3) (d) of CGST/SGST Act. Q 30. What are the guidelines for issue of summons? Ans. The Central Board of Excise and Customs (CBEC) in the Department of Revenue, Ministry of Finance has issued guidelines from time to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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