All summons under Customs Act between 13.07.2006 to 20.02.2008 illegal?
Remember the draconian Taxation Laws (Amendment) Act, 2006 which came into effect from 13.7.2006? By this Act, Section 108 of the Customs Act was amended. The Section before its amendment read as,
SECTION 108. Power to summon persons to give evidence and produce documents. – (1) Any Gazetted officer of Customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making xxxxxxxxxxxx
By the amending Act, this has been amended to read as,
SECTION 108. Power to summon persons to give evidence and produce documents. – (1) Any Gazetted officer of Customs duly empowered by the Central Government in this behalf , shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making xxxxxxxxxxxxxxxxxxxxxxxx
Please note the difference. Before 13.7.2006, any gazetted officer of Customs had the power to summon but after 13.7.2006, only those gazetted officers duly empowered by the Central Government , have this power. And the good government had forgotten to empower the gazetted officers for this purpose for nearly two years.
Now the government has notified that all gazetted officers are empowered. This notification is issued on 20 th February, 2008. This means till yesterday, there was no empowered gazetted officer who had the power to summon persons under the Customs Act.
This is the problem with callous legislation. The Section provides that a gazetted officer empowered by the government shall have the power to summon and now the government has empowered all gazetted officers to summon. What was the need to specify that all officers empowered by the government should have the power and then to notify all the officers to have the power ?. They could have simply kept it as, “all gazetted officers shall have the power to summon… ”. But then complicating the laws is how the babu thrives in his glorious confusion spreading!
Now all the summons issued by the Customs officers during the period 13.7.2006 to 19.02.2008 are patently illegal and without authority and consequently all the statements recorded under these summons are also illegal and so not admissible evidence.
What is the position in Central Excise? Perhaps it is the import of the provisions of the Central Excise Act into the Customs Act that caused the damage. Section 14 of the Central Excise Act reads as,
Power to summon persons to give evidence and produce documents in inquiries under this Act .-
(1) Any Central Excise Officer duly empowered by the Central Government in this behalf, shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document xxxxxx
And this empowerment had been done by the Notification No. 9/99 CENT dated 10.02.1999 on “ All Central Excise Officers not below the rank of a Superintendent of Central Excise.”
So, on the Central Excise side, there is no problem, but on the Customs side, the action is yet to start! Interesting days ahead !. All the consultants in the country should thank the Board for ensuring their successful survival.
Notification No. , Dated: February 20, 2008