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TMI Blog2019 (11) TMI 1628X X X X Extracts X X X X X X X X Extracts X X X X ..... Act of the State of Assam are of the view that the appellants are required to be proceeded with or prosecuted under the AGST Act, it would be appropriate to invoke the provisions of Section 67 of the AGST Act and proceed accordingly. But without invoking the provisions of Section 67 of the AGST Act and following the procedure prescribed therein, it would be inappropriate to allow the police authorities of Assam to continue with the detention and the seizure of the trucks containing the areca nuts on the plea that the appellants have violated some or any of the provisions under the AGST Act. The detained/seized goods be retained by the police authorities of Assam for a period of seven days from today. In the meantime, the GST authorities of the Government of Assam, the police authorities of the Government of Assam and the Customs authority of the Customs Department, Government of India shall take their respective decisions on how to proceed with the matter of the detained/seized trucks of areca nuts within the period of seven days - Petition disposed off. - WA 306/2019 - - - Dated:- 25-11-2019 - HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA AND HONOURABLE MR. JUSTICE NEL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the seized trucks and centered around the aspect that in respect of most of the truck owners certain discrepancies were found. One of the core allegation made in the ejahar was that the documents pertaining to payment of goods and service tax (GST) were not found in order and, therefore a view was formed that the appellants were involved in evasion of GST dues. Another allegation in the ejahar was that the documents submitted by them were not genuine and were forged with fake signatures. The allegations made in the ejahar dated 03.09.2019 if taken at its face value, would entail a proceeding against the appellants under the GST laws for the purported evasion of the GST dues and with regard to the allegation that the documents were not genuine and were forged with fake signatures, it would entail a prosecution under the Code of Criminal Procedure (for short CrPC) for having committed an offence under the Indian Penal Code (for short IPC). 6. In the said circumstances, the WP(C)No.6762/2019 was preferred for a declaration that the seizure/detention dated 21.08.2019 be declared to be illegal, without jurisdiction, with a further direction to the respondent authorities, more pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orities in the DRI that thebetel nuts that were transported not only compromised the revenue under the Customs Act, but also the bio-security of the country would be adversely affected. For the purpose as betel nuts/areca nuts is an agricultural produce, reference was made to Note 3 of the General Note regarding import policy which was as under: All primary agricultural products will be subject to a Bio Security Sanitary Phytosanitary import permit, to be issued by the Department of Agriculture and Cooperation, Ministry of Agriculture Farmers Welfare, as per condition of Plant Quarantine (Regulation of Import into India) Order, 2003 (as amended from time to time) . 10. The provisions of Note 3 of the General Note regarding import policy required that all primary agricultural products be subjected to a bio-security and sanitary-phytosanitary import permit procedure to be issued by the Department of Agriculture and Co-operation, Ministry of Agriculture Farmers Welfare, as per condition of Plant Quarantine (Regulation of Import into India) Order, 2003. 11. In the aforesaid background, the writ petitions preferred by the appellants herein was given a final considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were seized essentially for fraud and forgery, their investigative role would primarily be confined to forgery of documents and cannot investigate whether there was any violation of the Customs Act. Accordingly, it was held that as regards the violation of the Customs Act, it would be appropriate for the police to hand over the investigation to the Customs authority so far as it relates to the allegations of smuggling. Similarly for the violation of the taxation laws under the AGST Act, it was held that the police authorities would have no jurisdiction and power to investigate such violation and the same would be governed by the provisions of the GST Acts under which a separate procedure for investigation is provided for. However in paragraph-53 of the judgment it was also provided that even if the statutes permit independent and separate investigation, but if such investigations involved coercive actions, similar to as contemplated under the CrPC, the investigations ought to be undertaken simultaneously, or else there would be a distinct possibility of infraction of the fundamental rights under Articles 14, 21 and 22. Further, as the documents produced revealed the commission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Acts provides as follows:- 67 Power of inspection, search and seizure- (1) Where the proper officer, not below the rank of Joint Commissioner, has reasons to believe that (a) a taxable person has suppressed any transaction relating to supply of goods or services or both or the stock of goods in hand, or has claimed input tax credit in excess of his entitlement under this Act or has indulged in contravention of any of the provisions of this Act or the rules made thereunder to evade tax under this Act; or (b) any person engaged in the business of transporting goods or an owner or operator of aware house or a godown or any other place is keeping goods which have escaped payment of tax or has kept his accounts or goods in such a manner as is likely to cause evasion of tax payable under this Act, he may authorise in writing any other officer of central tax to inspect any places of business of the taxable person or the persons engaged in the business of transporting goods or the owner or the operator of warehouse or godown or any other place. (2) Where the proper officer, not below the rank of Joint Commissioner, either pursuant to an inspection carried ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods are seized under sub-section (2) and no notice in respect thereof is given within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized: Provided that the period of six months may, on sufficient cause being shown, be extended by the proper officer for a further period not exceeding six months. (8) The Government may, having regard to the perishable or hazardous nature of any goods, depreciation in the value of the goods with the passage of time, constraints of storage space for the goods or any other relevant considerations, by notification, specify the goods or class of goods which shall, as soon as may be after its seizure under subsection (2), be disposed of by the proper officer in such manner as may be prescribed. (9) Where any goods, being goods specified under sub-section (8), have been seized by a proper officer, or any officer authorised by him under sub-section (2), he shall prepare an inventory of such goods in such manner as may be prescribed. (10) The provisions of the Code of Criminal Procedure, 1973, relating to search and seizure, shall, so far as may be, apply to search and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing or leaving India, etc. (1) If the proper officer has reason to believe that any person to whom this section applies has secreted about his person, any goods liable to confiscation or any documents relating thereto, he may search that person. (2) This section applies to the following persons, namely:- (a) any person who has landed from or is about to board or is on board any vessel within the Indian customs waters'; (b) any person who has landed from or is about to, board, or is on board a foreign-going aircraft ; (c) any person who has got out of, or is about to get into, or is in, a vehicle, which has arrived from, or is to proceed to any place outside India ; (d) any person not included in clause (a), (b) or (c) who has entered or is about to leave India ; (e) any person in a customs area. 101.Power to search suspected persons in certain other cases. (1) Without prejudice to the provisions of section 100, if an officer of customs empowered in this behalf by general or special 1214 order of the 2[Commissioner of Customs,] has reason to believe that any person has secreted about his person any goods of the description specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the respondents to indicate any such violation of the provisions of the AGST Act. What is contended is that some such documents are either fraudulent or it contains forged signatures resulting in offences under Sections 120(B)/420/467/471 of the IPC. 26. Accordingly, we are of the view that if the authorities under the AGST Act of the State of Assam are of the view that the appellants are required to be proceeded with or prosecuted under the AGST Act, it would be appropriate to invoke the provisions of Section 67 of the AGST Act and proceed accordingly. But without invoking the provisions of Section 67 of the AGST Act and following the procedure prescribed therein, it would be inappropriate to allow the police authorities of Assam to continue with the detention and the seizure of the trucks containing the areca nuts on the plea that the appellants have violated some or any of the provisions under the AGST Act. 27. But again as per the ejahar dated 03.09.2019, it is also the allegation that the appellants, or some of them, were involved in fraud and forgery as regards certain documents related to the GST. If the police authorities of Assam are of the view that the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the plea that provisions of the Customs Act had also been violated by the appellants. 31. We also cannot be oblivious to the aspect that the detained/seized areca nuts may result in abio-security threat as provided in the report of the Ministry of Agriculture and Farmers Welfare, Government of India. Therefore, we are of the view that it is for the appropriate authorities, particularly the authorities under the Customs Department to take a call on the matter as to what further is required to be done in respect of the detained/seized areca nuts, but such call has to be by strictly following the provisions of the Customs Act. 32. In view of the above, we provide that the detained/seized goods be retained by the police authorities of Assam for a period of seven days from today. In the meantime, the GST authorities of the Government of Assam, the police authorities of the Government of Assam and the Customs authority of the Customs Department, Government of India shall take their respective decisions on how to proceed with the matter of the detained/seized trucks of areca nuts within the period of seven days. If any such decision is taken to proceeded against the appellants, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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