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TMI BlogProsecutionX X X X Extracts X X X X X X X X Extracts X X X X ..... e sections 132, 133, 134, 135, 135A or 136 of the Customs Act, 1962 after a careful consideration of the nature of offence, the role of the person concerned and evidence available to substantiate the guilty knowledge/mensrea. 15.2.2 Threshold limit for launching prosecution and exceptions has been prescribed in Circular No. 12/2022- Customs dated 16.08.2022: A. Exceptions: The threshold limits would not apply in case of persons indulging habitually in such violations or where criminal intent is evident in ingenious way of concealment, where prosecutions can be considered irrespective of the value of goods/currency involved in such professional or habitual offenders, etc. provided the cumulative value of 3 or more such offences in past five years from the date of the decision exceeds the threshold limit (s). B. Special Cases relating to FICN, arms, ammunitions, wild life etc.: The threshold limits would also not apply in cases involving offences relating to items i.e. FICN, arms, ammunitions and explosives, antiques, art treasures, wild life items and endangered species of flora and fauna. In such cases, launching of prosecution should be considered invariably, irrespective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Principal CC) or Director General/Principal Director General of Revenue Intelligence (Pr. DGRI), as the case may be, will be essential for launching of prosecution in respect of cases covered by sub paras referred above. 15.3 The following aspects may also be kept in view while considering launching of prosecution for offences under the Customs Act, 1962 : - 15.3.1 Prosecutions should not be launched as a matter of routine and/or in cases of technical nature, where the additional claim for duty is based solely on a difference of interpretation of the law. Before launching any prosecution, it is essential that the department should have sufficient evidence to prove that the person, individual or company, against whom prosecution is being considered, had guilty knowledge of the offence or had fraudulent intention of committing the offence, or in any manner possessed mens rea which would indicate his guilt. It follows, therefore, that in the case of Public Limited Companies, prosecution should not be launched indiscriminately against all the Directors of the Company, but should be restricted to only such persons who have taken active part in committing, or have connived at, the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution. In view of aforesaid observations of Hon'ble Supreme Court, it is reiterated that if the party deliberately delays completion of adjudication proceedings, prosecution may be launched even during the pendency of the adjudication proceedings, where offence is grave and qualitative evidences are available. 15.4.3 Prosecution need not be kept in abeyance on the ground that the party has gone in appeal/revision. However, in order to ensure that the proceeding in appeal/revision are not unduly delayed because the case record are required for purpose of prosecution, a parallel file containing copies of the essential documents relating to adjudication should be maintained. 15.4.4 The Superintendent in charge of adjudication section should endorse copy of all adjudication orders to the prosecution section. The Superintendent in charge of prosecution section should monitor receipt of all serially numbered adjudication orders and obtain copies of adjudication orders of missing serial numbers from the adjudication section every month. 15.5 Procedure for launching pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne 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 the Circular No. 07/2017 - Customs dated 06.03.2017. 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. 15.5.4 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... monitoring of prosecution cases, a Prosecution Cell should be created in each Commissionerate under the supervision of Additional/Joint Commissioner. In case of Directorate of Revenue Intelligence, an Additional/Joint Director in headquarter/each zonal unit should supervise the prosecution work relating to headquarters or respective zonal unit, as the case may be. 15.7.3 For keeping track of prosecution cases launched by the Commissionerate, a prosecution register in the format enclosed as Annexure-II to this Circular should be maintained in the Prosecution Cell of each Commissionerate. The register should be updated regularly and inspected by the Principal Commissioner/Commissioner at least once in every quarter of the Financial Year. For keeping track of prosecution cases launched by DRI, prosecution register in the similar format as Annexure II should be maintained in the Zonal Unit/Hqrs of DRI pertaining to those prosecution cases and similar regular monitoring to be carried out by ADGRI/Pr. ADGRI concerned. 15.8 Appeal against Court order in case of inadequate punishment/acquittal : 15.8.1 Commissioner/Pr. Commr. responsible for the conduct of prosecution or ADGRI/Pr. ADGR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6) E.L.T. 294 (S.C.)] : (a) the findings in the adjudication proceeding in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue, and (b) in case of exoneration, however, on merit where allegation is found to be not sustainable at all and person held innocent, criminal prosecution on the same set of circumstances cannot be allowed to continue, underlying principle being the higher standard of proof in criminal cases. C. In respect of cases covered under clause (b) above, the Chief Commissioner/Principal CC or DGRI/Pr. DGRI would ensure moving an application through Public Prosecutor in the court for withdrawal of prosecution in accordance with law. The withdrawal can only be effected with the approval of the court. 15.10 Compounding: Section 137 of Customs Act, 1962 provides for compounding of offences by the Chief Commissioner. The provisions regarding compounding of offence should be brought to the notice of person being prosecuted and such person be given an offer of compounding by the Commissioner/Principal Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osecution initiated in the Management Information System (MIS) under prescribed Proforma. 15.12 Inspection of prosecution work : Director General (Inspection) and Chief Commissioners/Principal CCs, while carrying out inspection of the Commissionerates/Customs Houses, should specially check all the above mentioned points, and make a mention about implementation of the guidelines in their Inspection Reports. 15.13 Transitional Provisions : All cases, where sanction for prosecution is accorded after the issue of this circular, shall be dealt in accordance with the provisions of this circular irrespective of the date of the offence. Cases where prosecution has been sanctioned but no complaint has been filed before the magistrate shall also be reviewed by the prosecution sanctioning authority in light of the provisions of this circular, as stipulated in Circular No. 27/2015-Customs dated 23.10.2015. 15.14 Where a case is considered suitable for launching prosecution and where adequate evidence is forthcoming, securing conviction largely depends on the quality of investigation. It is, therefore, necessary for senior officers to take personal interest in investigations of important ..... X X X X Extracts X X X X X X X X Extracts X X X X
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