• Nov
  • 19
  • 2009

Right of an assessee when summoned

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To investigate evasion of taxes, the officers are empowered to summon a person or documents and record statements. It is legally expected that the officer summoning a person will record voluntary statement of the person summoned. Nevertheless, over-zealous officers do violate this legal mandate and attempt to threat or coerce or induce the person summoned into stating the things they wish. Although legally such threat/coercion/inducement makes the statement involuntary and not admissible in any proceeding, including departmental proceeding, it is almost impossible to establish for and assessee to establish such threat/coercion/inducement.

Further in the summon proceeding, presence of advocates are not allowed. The Supreme Court held in Poolpandi that a person being interrogated under Section 14 of the Central Excise Act or under Section 108 of the Customs Act is not an accused nor can he plead that there is a possibility of being made an accused in future. Hence, he has no right to ask for his advocate presence during enquiry. The whole logic of this judgment fails when the first question is asked from a person summoned, an answer of which is likely to implicate the person summoned in any offence.

The author is of the opinion that a right to consult an advocate doesn’t emanate from the fact that a person is an accused or likely to be made one in future. Right to consult an advocate is not limited only to persons covered under Article 22 of the Constitution. Every person, whether an accused or not, whether an suspect or not has a right to consult a legal practitioner at any point to time when he feels that his right is being violated or likely to be violated. The right is as fundamental as Right to life itself. Thus, if, for example, a person is being abused by the interrogating officer, during an enquiry under Customs or Central Excise Act, he has every right to consult an advocate, then and there. It cannot be argued that the person being interrogated listen to the abuses till the time enquiry proceeds and only then he can consult an advocate. Off Course, owing to the Supreme Court judgment, a person cannot claim that he should be interrogated only in presence of a lawyer, but the presence of a lawyer can be allowed by the inquiry officer, if a request is made. However, once a request for presence of a lawyer is made to the inquiry officer, it cannot be rejected arbitrarily or without valid reasons. If any request of presence of a lawyer is arbitrarily rejected, the Courts may draw an adverse inference against the statement recorded in such proceeding.

In view of such provisions, it become very necessary for the person summoned to know his rights so that it cannot be protected even without the assistance of a lawyer. This paper is an attempt to enumerate certain rights which a person has when he is summoned in an inquiry pertaining to Customs or Central Excise.

Only Gazetted Officers can summon:

Only the gazetted officers are empowered either to summon persons or to call for documents. Superintendent of Central Excise is the lowest level gazetted officer in the Central Excise department. No officer below the rank of Superintendent can exercise power conferred under Section 14 of the Central Excise Act [Notification No. 9/99- C.E., (N.T.), dated 10-2-1999]. In Customs, appraiser is the lowest level gazetted officer. Further only the officer conducting the enquiry can summon a person or to call for document. When no enquiry is being conducted no person can be summoned or no document can be called for. Only the material necessary for the enquiry can be summoned. Every summon issued under the Act shall be in writing, in duplicate, and shall state the purpose for which it is issued, and shall be signed by the officer issuing it and shall also bear his official seal, if he has any [Rule 204 of the erstwhile Central Excise Rules, 1944].

An authorized officer can summon a person or documents outside his territorial jurisdiction if the cause of action has arisen within his jurisdiction. The Karnataka High Court held, in Raletronics Ltd. v/s UOI, “The power of investigation and collecting materials which may lead to further enquiry or adjudication is part of the machinery created by the law to prevent tax evasion. The machinery provisions in a fiscal legislation are to be liberally construed so as to effectuate the purpose behind the said machinery. Therefore, I am of the view that when the cause of action arises within the territorial jurisdiction of a particular officer, he is competent to have the matter investigated even in an area outside his jurisdiction. It is not a case of stretching the jurisdiction beyond his territory at all.”

Persons should be summoned in normal working hours:

Normally persons should be summoned in normal working hours on a working day. The Board has instructed vide Circular, wherein it has stated that, “Instances have come to the notice of the Board wherein Central Excise officers while carrying out investigations and searches have summoned persons for questioning at odd hours thereby inviting unnecessary criticism. This has also adversely affected image of the department. As far as possible the recording of statements of persons where it is not possible to postpone the same should be completed immediately after search of the premises search. While recording statements etc., due courtesy should be extended. If any person is to be summoned he should ordinarily be summoned on a working day and during normal working hours.”

Summons should be issued only for justified reasons. It must not be a harassing technique. It is a legal power to be exercised in a judicious manner in furtherance of the aim for which it is granted. In a circumstance, when the CBEC received some complaints about abuse of Section 14 of the Act, it instructed, in the Circular, “Action under this section is to be taken only as a last resort in cases where assessees are not co-operating or investigations are to be completed expeditiously. This section should not be used for harassing the top management for forcing them to pay up demands, which are disputed by them. For recovery of demands normal procedure under the law should be followed. If any instance of issue of summon to Managing Directors and other Directors without justification is noticed, a serious view will be taken by the Board. Collectors will be held personally responsible for enforcing these instructions in their charges.”

Summoning Documents:

Documents can be summoned only when they are in possession or in control of the person from whom they are being summoned. For example, if some documents are in the possession of the Income Tax department, they cannot be summoned from an assessee even when those documents belong to the assessee. In that case a simple letter to the officer summoning the documents informing him about the whereabouts of documents can be sufficient.

In Hindustan Safety Glass Work Ltd. v/s Assistant Collector of Central Excise, the Court held that wholesale demand for production of a large number of documents, which can possibly have no relevance to the enquiry made by the Assistant Collector. This obviously is not permissible in law. No fishing enquiry can be conducted under section 14 of the Act. There cannot be wholesale summon of documents not relevant to the enquiry under this provision. While approving the observations the Punjab & Haryana High Court held in K C Vanaspati v/s Asst. Collector  held “as the documents required to be produced have no relevance to the inquiry involved, but it is an attempt to collect material by wholesale production of documents during a fishing inquiry. No doubt, the Allahabad High Court had set aside the summons for production of wholesale documents by holding that the Collector cannot make fishing inquiry but should have summoned the relevant record only.”

Summons for documents must clearly specify the documents, which the authority propose to summon. The authority must apply his mind with respect to the necessity to obtain and examine the documents mentioned in the order- Barium Chemicals v/s UOI [AIR 1972 SC 591]. In this case the summons the Supreme Court set aside the summon on the ground of vagueness.

Power to summon documents is a general power, which can be exercised in various situations like enquiry and investigation of offences, adjudication proceedings, enquiry so as to decide about any conditional exemption etc. The Calcutta High Court observed in Meera Chemical Inds. Ltd. v/s D P Anand,“Section 14, in my opinion, is a general power which can be exercised by a duly authorised officer, for any kind of investigation under the Act or the Rules. It is not restricted to any particular matter arising under the Act, nor is it excluded by reason of any circumstance.”

The power under Section 14 may be exercised at the request of the assessee. In adjudication proceeding, if any document is required by the assessee as defense document and the same is not in control or in possession of the assessee, the assessee can request the adjudicating authority to summon those documents. Even at the time of investigation the accused or suspect may request the investigating officer to summon documents which may be helpful in establishing the innocence of the suspect or accused. However before requesting the authority to summon documents steps must be taken by the assessee to procure those documents if possible by reasonable diligence. In Shree Synthetics Ltd. v/s UOI, the Supreme Court observed, “It is, therefore, open to the appellant to apply to the Assistant Collector, Baroda for a copy of the said order which may be supplied to him in accordance with the rules. If, however, the copy is refused to be furnished by the said Assistant Collector, it may then be open to the appellant to request the Assistant Collector, Ujjain to summon the same from the other Assistant Collector.”

Summon has to be served:

The summons under Section 14 of the Central Excise Act or under Section 108 of the Customs Act has to be served. The service of the summons must be to the proper person. Thus when the authority want to summon some documents from a company, service of summon to an employee is not proper. In Chajja Textile Limited v/s Commissioner of Central Excise, the Tribunal discarded statement recorded under section 14 of the Central Excise Act because summon was not served properly.

No detention for long hours:

The Central Excise or Custom officer has no power to detain a person for long hours in the name of enquiry or under the guise of summons of persons. The Madras High Court in Roshan Biwee v/s Joint Secretary held,

“since at the stage of enquiry or investigation or interrogation held under Section 107 or Section 108 of the Customs Act, the person required or summoned for such enquiry or examination is not arrested, nor has he become any accused, therefore, if in a given case, the Customs officials detain any person required or summoned under the provisions of the Customs Act for a prolonged period, even exceeding 24 hours, or keeps him in closed doors as a captive prisoner surrounded by officials or locks him in a room or confines him to an office premises, he does so at his peril, because Sections 107 and 108 of the Customs Act do not authorise the Customs Officer to detain a person for a prolonged custody and deprive him of the elementary facilities and privileges to which he is entitled. In such a situation, the Officer must have overstepped his limits and thus violated the provisions of Article 22(2) of the Constitution.”

Normally it is expected that any enquiry should be conducted during office hours and if the enquiry cannot be completed before the fall of the day it should be postponed to the next day. The Madras High Court held, in Anil G. Merchant v/s DRI,

“Neither the provisions of Section 107 nor Section 108 nor any other provision in the Customs Act, 1962 or the Rules framed thereunder restrict the right of the Customs Officer to require the person to appear before him only at stated hours. Normally, such interrogation or examination will be done during the normal office hours or during day time.” The Kerala high Court in Prakash Kumar Choudhary v/s UOI directed, “we make it clear that every endeavour should be made to close the examination of the appellant before sunset and if for any reason it cannot be so closed, the same should be resumed only in the next day morning.”

Statement recorded must be voluntary:

The statements recorded under these Sections are admissible in evidence even against the maker of the statements. Such statements are admissible even if retracted later.

However to be admissible, the statement must be voluntary. An Excise or Custom officer cannot compel a person to give statement. There should not be any threat to give the statement.

Section 14(2) of the Central Excise Act and Section 108(3) of the customs Act specifically provides that all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined. Hence there is no right to silence.

No violence can be used against the person summoned:

No violence can be used against a person giving the statement. Violence doesn’t merely means physical violence. It includes abusive language, threat of violence or any other legal injury. It needn’t be directed against the person summoned, it can be against anyone in whom the person summoned is generally interested.

Use of any form of violence against the person summoned is a crime under the provisions of the Indian Penal Code and a person subjected to such violence can approach the police or the judicial forum to seek justice against any form such violence. In Mahendra Jain vs. Union of India, the Calcutta High Court observed that,

“it is true to say that the interrogating officers should have appropriate right for the purpose of interro­gation but such right should not exceed the limit of the human right. There is no law which say that as against the summons Customs authorities will proceed for interrogation as per their sweet will forcibly keeping in their custody for indefinite period. If it is done then it has to be construed as informal custody. Therefore, the law relating to accused in a custody has to be expressly or impliedly, applicable. If accused can get all benefits under Article 21 of the Constitution a person in such informal custody can say that he is also entitled to get relief under Article 21 of the Constitution of India. It cannot be said that the authority will behave in violation of Article 21 without declaring one as accused and Court will give premium to such illegality.”

The Court further added that now a days, custodial violence is not unknown to the people and Court cannot refrain from taking any Judicial notice. If such violation exceeds the personal right and liberty as given under Article 21 of the Constitution of India, the writ Court is justifiable entertain, the writ petition and pass an appropriate order. It is significant to note that custodial violence is not an ordinary violence even if one has been taken in the custody as against any criminal charges. The declaration has to be made whether the person concerned is formally accused or not. It is not be misused for extracting statements by force.

Remedy against abuse of power by the summoning officer:

As a lawyer, it is shameful to tell people that even if your right has been violated, you have no remedy. You cannot prosecute the guilty officer, for it is impossible to get the sanction of Central Government to prosecute an officer under Section 197 of the Code of Criminal Procedure. Officers cannot be prosecuted under Customs or Central Excise Act, as it is impossible to get the sanction of the Commissioner. Such provisions were enacted by the Britishers to maintain and perpetuate colonial rule, and Indian law is still carrying the legacy of colonial rules. The author is of the view that such provisions has specifically made to shield the guilty officials and block the progress of Rule of Law in the country. The remedy for suit for damages is better not exercised in the present Indian context.

The only remedy, which exists against such abuse summoning power is “freedom of expression”. This freedom of expression is basis of all rights which exist anywhere for common people. When any of the rights is violated, an assessee must express himself. He should bring such happening in the notice of other assessees, trade associations, media and authorities. He must insist that cognizance of such violation of assessee’s right should be taken and appropriate action be initiated.

Written by:- Advocate Rajesh Kumar. The author can be contacted on The author can be contacted on custom.excise@gmail.com , Web: www.rajeshkumar.co.in


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