Arrest and Bail under Central Excise - CBEC Issues Instruction
CERTAIN amendments were made in the Central Excise Act, 1944 with regard to arrest and bail, in the Finance Act, 2013.
Now, Board has come out with a circular clarifying various issues on arrest and bail.
Since arrest takes away the liberty of an individual, the power must be exercised with utmost care and caution and only when the exigencies of the situation demand arrest. A person is liable to be arrested for non-bailable offence only when the offence committed by him is covered under clause (b) or clause (bbbb) of sub-section 9(1) and the duty involvement exceeds Rs. fifty lakh. Thus, it is essential to examine offences in each and every case with reference to each of the clauses of sub-section 9(1) and also the quantum of duty involved prior to invoking the arrest provisions. Only where clause (b) or clause (bbbb) are the most appropriate clauses to describe the offence and duty involved exceeds rupees fifty lakhs, these provisions should be invoked. Any person arrested for offences under these clauses should be informed of the grounds of arrest and produced before a magistrate without unnecessary delay and within 24 hours of arrest.
A list of non-bailable offences where decision to arrest may be taken by the Commissioner:
(a) clandestine removal of manufactured goods;
(b) removal of goods without declaring the correct assessable value and receiving a portion of sale price in cash which is in excess of invoice price and not accounted for in the books of account;
(c) takingCenvat Credit without the receiving the goods specified in the invoice;
(d) takingCenvat Credit on fake invoices;
(e) issuingCenvatable invoices without delivering the goods specified in the said invoice.
Bail: Bail should be subject to the condition(s), as deemed fit, depending upon the facts and circumstances of each individual case. It has to be ensured that the amount of bail bond/ surety should not be excessive and should be commensurate with the financial status of the arrested person. Further the bail conditions should be informed by the arresting officer in writing to the person arrested and also informed on telephone to the nominated person of the person(s) arrested. Arrested person should be allowed to talk to the nominated person. If the conditions of the bail are fulfilled by the arrested person, he shall be released by the officer concerned on bail. The arresting officer may, and shall if such a person is indigent and unable to furnish surety, instead of taking bail, discharge him on executing a bond without sureties to his appearance as provided under section 436 of Cr.PC. However, in cases where the conditions for granting bail are not fulfilled, the arrested person shall be produced before the appropriate magistrate within 24 hours of arrest.
Precautions to be taken by the departmental officers:Powers to arrest a person needs to be exercised with utmost caution. Chief Commissioners/ Commissioners of Central Excise are required to ensure that approval for arrest for non-bailable offence is granted only where the intent to evade duty is evident and element of mensrea / guilty mind is palpable. The guidelines given by the Supreme Court in D. K. BasuVs State of West Bengal - are to be followed.
Arrest Memo: Though there is no prescribed format for the arrest memo, Board has prescribed the essential particulars that the arrest memo should contain.
Certain modalities:
1. Arrest of a female should be carried out by or in the presence of a lady officer;
2. Arrest memo should be attested by nominated person (such as member of family) of the person arrested or a respectable member of the locality from where the arrest is made;
3. Medical examination of the arrested person should be conducted by a medical officer in the service of Central or State Governments and in case such medical officer in not available, by a registered medical practitioner soon after the arrest is made. If an arrested person is a female then such an examination shall be made only by, or under supervision of a female medical officer, and in case such female medical officer is not available, by a female registered medical practitioner;
4. It shall be the duty of the officer having the custody of the arrested person to take reasonable care of the health and safety of the person arrested.
Chief Commissioners are to send a report to the Zonal Member on every arrest and a monthly report to the DGCEI.
Let us hope the field officers follow all the instructions of the Board.
The Board Circular wants the field to follow the guidelines of the Supreme Court in the case of D. K. BasuVs State of West Bengal , but Board has not mentioned where the case is available or what the instructions are. You can access the case and the instructions in .
Similar instructions are to be given for Customs and Service Tax and maybe they are in the pipeline.
CBEC Circular No.974/08/2013-CX, Dated: September 17, 2013