Summons, Enquiries and Investigations

under
Service Tax
Udayan Choksi
9th July 2011
 Why summons and investigation/search and
seizure?

Investigation by tax authorities

 Jurisdictional
 Investigative

Preparatory steps to proceedings
 SCN
 Prosecution

You know your own facts (best!)

 Key provisions – Section 14 of Central Excise 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 or any other thing in any inquiry which
such officer is making for any of the purposes of this Act. A summons to produce
documents or things may be for the production of certain specified documents or
things or for the production of all documents or things of a certain description in the
possession or under the control of the person summoned.
summoned
(2) All persons so summoned shall be bound to attend,
attend either in person or by an
authorised agent, as such officer may direct; and all persons so summoned shall be
bound to state the truth upon any subject respecting which they are examined or make
statements and to produce such documents and other things as may be required :
Provided that the exemptions under sections 132 and 133 of the Code of Civil
Procedure 1908 (5 of 1908) shall be applicable to requisitions for attendance under
Procedure,
this section.
(3) Every such inquiry as aforesaid shall be deemed to be a “judicial proceeding” within
the meaning of section 193 and section 228 of the Indian Penal Code, 1860 (45 of
1860).
 Key provisions – Section 37C of Central Excise Act

(1) Any decision or order passed or any summons or notices issued under this
Act or the rules made there under, shall be served,
served -
(a) by tendering the decision, order, summons or notice, or sending it by
registered post with acknowledgment due, to the person for whom it is intended
or his authorised agent, if any;
(b) if the decision, order; summons or notice cannot be served in the manner
provided in clause (a), by affixing a copy thereof to some conspicuous part of the
factory or warehouse or other place of business or usual place of residence of
the person for whom such decision, order, summons or notice, as the case may
be, is intended;
(c) if the decision, order, summons or notice cannot be served in the manner
provided in clauses (a) and (b ), by affixing a copy thereof on the notice board of
the officer or authority who or which passed such decision or order or issued
such summons or notice.
(2) Every decision or order passed or any summons or notice issued under this
Act or the rules made there under, shall be deemed to have been served on the
date on which the decision, order, summons or notice is tendered or delivered by
post or a copy thereof is affixed in the manner provided in sub-section (1)
 Key provisions – Section 82 of Finance Act, 1994

82. Power to search premises – (1) If the Joint Commissioner of Central Excise
has reason to believe that any documents or book or things which in his opinion
will be any useful for or relevant to proceedings under this Chapter are secreted
in any place, he may authorize any Superintendent of Central Excise or, as the
case may be, Deputy Commissioner of Central Excise to search for and seize or
may himself search for and seize, such documents or books or things.
things.
(2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating
to searches, shall, so far as may be, apply or searches under this section as they
apply to searches under that Code.
 Key provisions – Rule 5A of Service Tax Rules, 1994

Rule 5A. Access to a registered premises.

(1) An officer authorised by the Commissioner in this behalf shall have access to
any premises registered under these rules for the purpose of carrying out any
scrutiny, verification and checks as may be necessary to safeguard the interest
of revenue.
revenue
(2) Every assessee shall, on demand, make available to the officer authorised
under sub-rule (1) or the audit party deputed by the Commissioner or the
Comptroller and Auditor General of India, within a reasonable time not exceeding
fifteen working days from the day when such demand is made, or such further
period as may be allowed by such officer or the audit party, as the case may be,-
(i) the records as mentioned in sub-rule (2) of rule 5;
(ii) trial balance or its equivalent; and
(iii) the income-tax audit report, if any, under section 44AB of the Income-tax Act,
1961 (43 of 1961), for the scrutiny of the officer or audit party, as the case may
be.
 Overview

Summons

Search and seizure

Access to registered premises

Investigative agencies
 Who has the powers to issue summons

Section 14 of Central Excise Act, 1944 (‘CEA’)

made applicable to service tax per Section 83
of the Finance Act 1994 (‘Act’), authorises any
‘central excise officer’ empowered by the
Central Government to issue summons to any
person in respect of any enquiry related to
service tax

Persons authorised include
 Chief Commissioner of Service Tax
 Commissioner of Service Tax
 Commissioner of Service Tax (Appeals)
 Additional Commissioner of Service Tax
 Joint Commissioner of Service Tax
 Assistant Commissioner of Service Tax
 Deputy Commissioner of Service Tax
 Any other officer of the Service Tax Department, or
any person (including an officer of the State
Government) invested by the Central Board of Excise
and Customs constituted under the Central Boards of
Revenue Act, 1963 (54 of 1963) with any of the
powers of a Central Excise Officer under the CEA
 Investigating agencies
 Scope of section 14 of CEA

Central excise officer given powers to

summon person, whose attendance he
considers necessary either to give evidence or
produce documents or any other thing in any
enquiry which such officer is making
 Summon may be for production of specified
documents or things or for the production of all
documents or things of certain description in
possession or control of the person summoned
 Per Section 174 of the Indian Penal Code (‘IPC’) where
a person summoned intentionally omits to attend at
that place of time, or departs form the place where he
is bound to attend before the time at which it is lawful
for him to depart, shall be punished with simple
imprisonment for a term which may extend to one
month, or with fine, or with both
 Also per Section 175 of IPC, where person summoned
intentionally omits to produce or deliver asked for
documents, shall be punished with simple
imprisonment for a term which may extend to one
month, or with fine or with both
 CBEC clarification on use of summons

CBEC vide F. No. 137/39/2007-CX-4,

dated 26-2-2007 clarified the situations
which warrant issuance of summons
 For calling for information / documents,
normally the mode of communication
should be either in the form of a
telephone call or by way of sending a
simple letter
 Issuance of summons should be
resorted to only when the above
mentioned modes of communication are
found to be ineffective or are likely to
jeopardize revenue interest or when it is
essential to ensure personal presence
of the person concerned to tender
evidence or record statement
 Summons should be issued after
obtaining prior written permission from
the AC
 Service of notices

Mode of service

Tendering or sending it by registered
post with acknowledgment due

By affixing a copy thereof to some
conspicuous part of the factory or
warehouse or other place of business
or usual place of residence of the
person

By affixing a copy thereof on the notice
board of the officer or authority who or
which passed such decision or order or
issued such summons or notice

Latter modes to be resorted to only if the
earlier modes are not possible

Service may be made on the person
himself or any authorised agent

Document is deemed to have been
served on the date on which it is
tendered or delivered by post or a copy
thereof is affixed
 Obligations of person summoned

All persons summoned shall be

bound to attend, either in person
or by an authorised agent and
shall be bound to state the truth,
make statements, produce
documents and other things as
required (Section 14 of the CEA)
 Penalty under the Act for non-appearance

Per Section 77(1)(c) of the Act,

every person, who fails to furnish
information called by officer, or
fails to produce documents called
for or fails to appear before the
officer when issued with a
summon, shall be liable to a
penalty which may extend to Rs.
10,000 or Rs 200 per day during
continuance of default (subject to
maximum of Rs 10,000)
 Prosecution provisions

Newly introduced section 89 (w.e.f. 8-4-2011) vide Finance Act, 2011

 Offence
 Failure to supply any information which he is required to supply under this
Chapter or the rules made thereunder, or supply of false information
 Punishment
 Where the amount exceeds 50 lakh rupees, imprisonment for a term which
may extend to three years
 In absence of special and adequate reasons to the contrary to be recorded
imprisonment shall be for a minimum of six months
 In any other case, imprisonment for a term which may extend to one year
 Sanction of the Chief Commissioner of Central Excise required for
initiating a prosecution
 Per Notification 3/2004-ST dated 11th March 2004, the Director General of
Central Excise Intelligence (DGCEI) can exercise the power of Chief
Commissioner of Central Excise throughout India
 Prosecution proceedings to be initiated by filing of complaint in a court of law
 To be generally initiated after adjudication of an offence is complete
 Deemed judicial proceedings under Indian Penal
Code

Proceedings under Section 14 of CEA are

deemed to be judicial proceedings within
the meaning of Section 193 & Section
223 of Indian Penal Code, 1860 (IPC)
 Section 193-Whoever
193 intentionally gives
false evidence in any stage of a judicial
proceeding or fabricates false evidence,
shall be punished with imprisonment for a
term which may extend to seven years, and
shall also be liable to fine
 Section-
Section- 223-
223- Whoever intentionally offers
any insult, or causes any interruption to
any public servant, while such public
servant is sitting in any stage of a judicial
proceeding, shall be punished with simple
imprisonment for a term which may extend
to six months, or with fine or with both
 Summons being misused??

Practically, it has been seen that on many

occasions, merely for obtaining information
or documents pertaining to service tax
cases/ matters, officers of field formations
or intelligence agencies resort to issuance
of summons to either service tax payers or
to other persons

From the nature of information / documents

called for, it is clear that same may be
obtained by making a telephonic request or
writing a simple letter to the person
concerned. Instead, summons are issued in
a routine manner, under the signature of
superintendent or the senior intelligence
officers.
 Presence of lawyer during interrogation?

Nandini Satpathy vs P.L. Dani and Anr [AIR 1978 SC

1025]

Accusation of corruption and acquisition of assests
disproportionate to income

Article 20(3) of constitution and Section 161(2) of CrPc
sought to be invoked

Article 20(3)- No person accused of any offence shall be compelled
to be a witness against himself

Section 161(2)-Such person shall be bound to answer truly all
questions relating to such case Put to him by such officer, other than
questions the answers to which would have a tendency to expose
him to a criminal charge or to a penalty or forfeiture.

Conflicting considerations before court

Preventing interrogation and tackling crime

Need for “accused” and “compelled”

Article 20(3) operates at all stages

Amendment IV and V to the US constitution and Magna Carta

Right to be secure against unreasonable search and seizure

Cannot be compelled to be witness against oneself

Article 22(1)- Right to have lawyer present

 Presence of lawyer during interrogation?

Supreme Court held that if an accused person

expresses his wish to have his lawyer during
examination, this facility should not be denied

“73.The right to consult an advocate of his choice shall not
be denied to any person who is arrested. This does not
mean that persons who are not under arrest or custody can
be denied that right. The spirit and sense of Article 22(1) is
that it is fundamental to the rule of law that the services of
a lawyer shall be available for consultation to any accused
person under circumstances of near custodial
interrogation. Moreover, the observance of the right against
self-incrimination is best promoted by conceding to the
accused the right to consult a-legal practitioner of his
choice.

75. Not that a lawyer's presence is a panacea for all problems
of involuntary self crimination, for he cannot supply answers or
whisper hints or otherwise interfere with the course of
questioning except to intercept where intimidatory tactics are
tried, caution his client where incrimination is attempted and
insist on questions and answers being noted where objections
are not otherwise fully appreciated. He cannot harangue the
police but may help his client and complain on his behalf,
although his very presence will ordinarily remove the implicit
menace of a police station”
 Presence of lawyer during interrogation?

Contrary view taken in Romesh Chandra Mehta vs State

of West Bengal [1999 (110) E.L.T. 324 (S.C.)] in the
context of customs law
 SC held that a statement made to a Customs Officer is not
hit by Section 25 of the Evidence Act since Customs
Officers are not Police Officers (Section 25 of the Evidence
Act states “No confession made to a Police Officer shall be
proved as against a person accused of any offence.”)
 A person who was asked to give evidence under the Sea
Customs act is not an accused and therefore guarantee
against testimonial compulsion under Article 20(3) is not
available to a person suspected of Customs duty evasion
 Presence of lawyer during interrogation?

Ratio in Romesh Chandra Mehta reiterated in Poolpandi vs

Superintendent of Central Excise [1992 (60) E.L.T. 24 (S.C.)]

Nandini Satpathy decision distinguished on grounds that in that
case, an accused was entitled to protection under Article 20(3) and
the Officers were Policemen, whereas in a case under the Customs
Act, the person does not become an accused during the enquiry
stage, nor are Customs Officials Police Officers

A perusal of the facts in Nandini Satpathy v. Dani (supra)
would clearly indicate that the decision has no application in
the present cases. The matter arose out of a complaint filed by
the Deputy Superintendent of Police (Vigilance) against the
appellant under Section 179 of the Indian Penal Code before
the Sub-Divisional Judicial Magistrate, Cuttack. [ ] In this
background the observations relied upon by Mr. Salve and Mr.
Lalit were made and they cannot be treated to have in any way
diluted the ratio in Romesh Chandra Mehta’s case. The
question whether customs officials are police officers, and
whether the statements recorded by the customs authorities
under Sections 107 and 108 of the Customs Act were
inadmissible in evidence were examined in Illias v. Collector of
Customs (supra) and answered in the negative by a Bench of
five Judges and it is, therefore, no use referring to the
observations made in the judgment in a regular criminal case
initiated by the police’
 Presence of lawyer during interrogation?

Person called for interrogation has no right for his lawyer to be

present as such person not equitable with an accused in the
criminal case
 Article 21 not violated- No person shall be deprived of his life or personal liberty
except according to procedure established by law
 Presence of lawyer during interrogation?

Thus the settled position is that a person

summoned before a Central Excise / Customs /
Service Tax Officer is not entitled to be
accompanied by his lawyer / advocate

Recently Supreme Court decision in Anand Prakash
Choudhari vs Union of India[2010-
India[2010-TIOL-
TIOL-98-
98-SC-
SC-CUS]
 Interrogation can be conducted in the presence of an
advocate, who would be entitled to stay at a visible
but beyond hearing distance from the place of
interrogation
 “Accordingly, we allow the application and direct that
the interrogation, if any, of the petitioner under Section
108 of the Customs Act, 1962, in connection with file
No. DRI/GRU/INV-02/2010-11, be conducted in the
presence of his advocate, who would be entitled to
stay at a visible but beyond hearing distance, from the
place of interrogation”
 We understand that the summoned person accused
the DRI of torture and had suffered a heart attack
 Retraction of statements

Effect of retraction of statements made during interrogation

 State (NCT of Delhi) v. Navjot Sandhu @ Afasan Guru [Supreme Court:
MANU/SC/0465/2005]
 A retracted confession may form the legal basis of a conviction if the court is
satisfied that it was true and was voluntarily made

Court not to base a conviction on a retracted confession without
corroboration
 State of Maharashtra v. A.N.Sabnai [1992 (58) ELT 208 (Bom.)]

Retracted statement not to form solitary basis of conviction

 Commissioner of Customs, Mumbai v. Foto Centre Trading Co. [2008
(225) ELT 193 (Bom.)]

Even if retracted statements could be considered, there must be other
corroborative evidence
 Summons seeking identifiable documents legal

Petitioner was engaged in the business of printing

and publishing newspapers, periodicals

AC issued summons u/s 14 to furnish certain
identifiable documents w.r.t. taxability under the
entry for ‘business auxiliary service’ (BAS)

Petitioner challenged the summons on grounds
that the same were based on suspicion as it was
mentioned that ‘commercial activities may fall’
under BAS

However the High court held in favor of revenue
 Documents sought being identifiable, inquiry
cannot be termed as fishing or omnibus inquiry
 Authorities conducting statutory duty - Petitioner
bound to comply with statutory notice
 Writ jurisdiction at summons stage?

Supreme Court in the case of Commissioner of Customs, Calcutta vs. M.M.

Exports [2
[2007 (212) E.L.T. 165 (S.C.)] observed that the High Court ought not
to exercise its writ jurisdiction at the summons stage unless there are
exceptional reasons
 However, we wish to make it clear that as far as possible the High Court should not
interfere at the stage when the Department has issued the summons. This is not
one of those exceptional cases where the High Court should have interfered at the
stage of issuance of the summons.
 FAQs- Summons

How does the summons process begin?

Can someone be authorised to appear on behalf of summoned
person?

Can a summon be avoided?

Must correct information be provided?

Can the officer use third degree measures? If yes, what
remedies are available?

Can a Chartered Accountant be present?

Can a statement be retracted
 Tips for summons

Give a hand written statement

Ask for time or refer to a colleague, if necessary

After the summons make your own notes of statement
recorded, and take legal advice

Can an assessee ask the officers to visit on an alternative date
 Search and seizure – Service tax

When service tax was introduced in the year

1994, it provided for very stringent
measures in case of non-compliance with
service tax provisions
 Sections 87 to 92 of the Finance Act, 1994
prescribed criminal liabilities under the Act

The Finance Act, 1998 w.e.f. 16-10-1998
omitted Sections 87 to 92 of the Finance
Act, 1994 leaving Section 82 of the Act,
which authorised the Commissioner of
Central Excise to cause search and seizure

Finance Act, 2011, has now empowered a
Joint Commissioner (earlier Commissioner)
to authorise a search under section 82 and
the rights for execution of such search given
to Superintendent (earlier AC/DC)
 When can search be initiated??

Per Section 82, where the Joint Commissioner (JC) has

reason to believe that any document or books or things,
things
which in his opinion will be useful for any relevant
proceeding, are secreted in any place,
place, he may authorise
any Superintendent of Central excise to search and seize
or may himself do so
 The Finance Act, 2002 w.e.f. 16-08-2002 had
expanded the scope of the section to authorise for
both search and seizure both
 Previously, only “search” and not “seizure” allowed
 Search is not restricted to any particular premise,
i.e. the premise need not be necessarily of the
assessee
 The term ‘secreted’ means kept in any place other
than the usual or normal place with a view to hide /
conceal them, where the officer of law cannot find it
 Supreme Court in the case of Durgaprasad vs.
H.B.Gomes, Superintendent (Prevention), Central
Excise [AIR 1966 SC 1209] has observed that
‘secret means documents not kept at normal or
usual place with a view to conceal it’
 Extent of subjectivity involved..

The expression 'reason to believe’ does not mean a purely

subjective satisfaction on the part of the Income tax officer.
It is open to the Court to examine whether the reasons for the
formation of the belief have a rational connection with or
relevant bearing on the formation of belief have a rational
connection with or relevant bearing on the information of the
belief and are not extraneous or irrelevant.
 [ITO v. Lakhmani Mewal Das (1976) 3 SCC 757]

The belief must be of a reasonable prudent man based on

some material facts, and not on the basis of suspicion,
gossip, or rumour
 [Little Co. v. CST, (1979) 43 STC 449 (All)]

There must be evidence of application of mind by the

prescribed officer
 [Ramnarain Bhojnanarwalla v. ITO, (1970) 77 ITR 653 (Cal)]
 Extent of subjectivity involved..

The belief of the assessing authority is mandatory. “Reason to believe” is stronger than “is
satisfied”. The belief entertained by the assessing officer must not be arbitrary or irrational and it
must be reasonable
 [S. Ganga Saran & Sons (P) Ltd. v. ITO [(1981) 3 SCC 143]

Mere suspicion cannot take the place of reasonable belief - officers must have reason to believe
 [Mitexco vs Commissioner of Customs (E.P.), Mumbai - 2003 (155) E.L.T. 69 Tri. - Mumbai)]

In the instant case, there is no acceptable proof to find that the inspecting staff of the Central Excise
Department or the Assistant Collector of Central Excise had at any time prior to the search and seizure
entertained any reasonable belief, on material scrutinised by them that the petitioner was likely to
arrive in Madras with tainted Indian currency attributable to the sale of smuggled goods or goods of
illicit origin. As the foundation for the exercise of power is conspicuously absent in the instant case
 [Abdul Kader vs Inspector of Central Excise [2000 (126) E.L.T. 48 (Mad.)]

The words “reason to believe” cannot mean that the assessing officer should have finally
ascertained the fact by legal evidence, they only mean that he forms a belief on the basis of
examination he makes, and from any information that he receives
 [Praful Chunilal Patel vs CIT [(1999)
[(1999) 236 ITR 832 (Guj)]
(Guj)]
 Whether reasons need to be recorded in writing..

Power of search and seizure has to be conceded in the larger interest of the society and
to check evasion of tax. Exercise of power of seizure is liable to be struck down unless
“reasons to believe” were duly recorded before action of search and seizure was taken.
The search and seizure was declared illegal where nothing was produced before the
court to show as to whether reasons were recorded or not before the search was
authorised or seizure took place.
 Mapsa Tapes (P) Ltd. v. Union of India [(2006)
[(2006) 201 ELT 7 (P&H)],
(P&H)]

Search and seizure operations were lawful though no reasons were recorded by the
person responsible to order the search and seizure in furtherance of his belief that any
goods liable to confiscation or any documents or things which he considers might be
useful for or relevant to any proceedings under the Customs Act were secreted in any
place. The Court observed the affidavit of the Associate Directorate of DRI and various
documents clearly suggested that there were enough reasons for the respondents to
order the search of the premises of the petitioners.
 Ajit Kumar Agarwalla vs Union of India [1998 (100) E.L.T. 333 (Cal.)],
(Cal.)]

Not necessary to record the reasons of search in writing

 [Partap Singh vs Director of Enforcement [(1985) 3 SCC 72]
 Whether search hit by article 20(3)?

Article 20(3) of the Constitution of India states that “No person accused of
any offence shall be compelled to be a witness against himself”

M.P. Sharma & 4 others vs. Satish Chandra [AIR 1954 SC 300]
 Issue as to whether a search to obtain documents for investigation of an offence,
which is a compulsory procuring of incriminatory evidence from the accused
himself, can be said to be hit by said Article 20(3) of the Constitution of India
 In this context, the Hon’ble Apex Court held that it is not legitimate to assume that
the constitutional protection under Article 20(3) would be defeated by the statutory
provisions for searches, as a power of search and seizure is, in any system of
jurisprudence, an overriding power of state for the protection of social security and
that power is necessarily regulated by law.
 Documents seized when to be returned?

No specific provision under service tax legislation.

Per rule 24A of the Central Excise Rules, 2002 (‘CER’), the books of accounts or other documents
seized by the Central excise officer or produced by assessee or any other person, which have not
been relied upon for issuance of show cause notice (‘SCN’) need to be returned with 30 days from
the date of issuance of within 30 days from expiry of the period for issuance of SCN

Under the Customs Act, 1962, Section 110 contain provisions for seizure of goods and
documents. Whereas Section 110(3) provides a limitation period six months for returning the
seized goods, if SCN is not issued within 6 moths from the date of seizure, no such limitation
provided for documents.

Stovekraft Pvt. Ltd JT. Director, DRI [2007 (214) E.L.T. 179 (Kar.)]
 Whether floppies, CDs, Hard disc, Pen drives etc. belonging to petitioner, which were seized and in which
relevant information which is useful for investigation was stored, were to be treated as ‘goods’ or
‘documents’ for the purpose of applicability of limitation period for return of seized item (section 110 of
Customs Act, 1962). It was held that the material which is stored in such Hard Disc, Pen-drives etc., can
be termed as electronic files or electronic documents. Such electronic document or records are admissible
as per Section 65B(1) of the Evidence Act.
 The Court also noted that the situation would have been different if the Floppies, CDs., Hard Disc, Pen-
drives etc., with or without the filled up data are brought to India by avoiding customs duty. In such a
situation, the aforesaid materials will have to be treated as goods for the purpose of paying customs duty
under Section 12 of the Customs Act.
 It is true that the Legislature has not laid down any period as to when the documents or things seized, are
to be returned to the concerned. However, it is expected that the authorities concerned can only retain
them as long as they require them for the purpose of investigation or for other purposes under the Act, but
cannot retain the same for inordinate length of time
 Code of criminal procedure applicable

Per Section 82(2) of the Act, the provisions

of the Code of Criminal Procedure, 1973
(CrPC), relating to searches, shall, so far as
may be, apply to searches under section
82 as they apply to searches under that
Code

The relevant provision of the CrPC are

sections 47, 51, 94, 99, 100, 101, 103,
165 & 166 of CCP
 Important Provisions of CrPC

Section 100-
100- Persons in charge of closed place to allow search

(1) Whenever any place liable to search of inspection under this Chapter is closed, any
person residing in, or being in chare of, such place, shall, on demand of the officer or
other person executing the warrant, and on production of the warrant, allow him free
ingress thereto, and afford all reasonable facilities for a search therein-

(2) If ingress into such place cannot be so obtained, the officer or other person executing
the warrant may proceed in the manner provided by sub-section (2) of section 47.

(3) Where any person in or about such place is reasonably suspected of concealing about
his person any article for which search should be made, such person may be searched
and if such person is a woman, the search shall be made by another woman with strict
regard to decency.

(4) Before making a search under this Chapter, the officer or other person about to make
it shall call upon two or more independent and respectable inhabitants of the locality in
which the place to be searched is situate or of any other locality if no such inhabitant of
the said locality is available or is willing to be a witness to the search, to attend and
witness the search and may issue an order in writing to them or any of them so to do.
 Important Provisions of CrPC

Section 100-
100- Persons in charge of closed place to allow search

(5) The search shall be made in their presence, and a list of all things seized in the
course of such search and of the places in which they are respectively found shall be
prepared by such officer or other person and signed by such witness; but no person
witnessing a search under this section shall be required to attend the court as a witness
of the search unless specially summoned by it.

(6) The occupant of the place searched, or some person in his behalf, shall, in every
instance, be permitted to attend during the search, and a copy of the list prepared under
this section, signed by the said witnesses, shall be delivered to such occupant or person.

(7) When any person is searched under sub-section (3), a list of all things taken
possession of shall be prepared, and a copy thereof shall be delivered to such person.

(8) Any person who, without reasonable cause, refuses or neglects to attend and witness
a search under this section, when called upon to do so by an order in writing delivered or
tendered to him, shall be deemed to have committed an offence under section 187 of the
Indian Penal Code (45 of 1860).

Also, Section 165 authorizes search by a Police officer

 Rights of assesses during search

The purpose of search proceedings is to collection of evidences of violations.

However during the course of such search, the officers cannot
 Disrupt daily activities like production, sale or clearance;
 Prevent communication with the legal advisor, business partners, clients, friends
or relatives;
 Carry out their search in a surreptitious manner without allowing personnel to see
what they are doing;
 Execute their search without identifying themselves individually so as to prevent
any complaint of a misconduct;

Remember: The Service Tax provisions do not provide for arrest

 Rights of assesses during search

At the entry point of your premises, you are well within your rights to
 Ask each of the officers to identify himself by showing his identity card
 Ask the leader of the team to show you the authorization letter of Joint Commissioner before
the search operation commences.
 In case of the premises under search are residential premises where women reside, no
search can be carried out unless the search team includes a lady. Women’s rooms can only
be searched in the presence of the female members of the search team. Women can only be
searched by female members of the search team.
 Personnel can insist that the search operation is conducted in the presence of at least two
independent witnesses (akin to a Panchnama).
 Upon completion of the search, the records collected should be properly numbered and
listed, and only listed documents and records should be taken away by the officers. In case of
seizure of goods, they are not taken away except as samples. The seized goods are generally
left with the owner himself under a document with a direction not to use or dispose off
without the permission of the department
 Personnel can insist that a copy of the signed witness statement be provided at the end of
the search
 Access to registered premises

Per Rule 5A of Service Tax Rules, 1994

(‘STR’), an authorised officer shall have
access to premises registered under the Act
for carrying out any scrutiny, verification and
checks

Every assessee shall on demand make
available to the authorised officer or the
audit party deputed by Commissioner or
Comptroller and Auditor General of India
(CAG) for scrutiny the following
 Records as mentioned in Rule 5 of STR
 Trial balance or its equivalent
 Tax audit report

Most commissionrates have, vide circulars,
authorised officers of the rank of inspector
for the aforesaid purposes
 Directorate General of Central Excise Intelligence
(DGCEI)

DGCEI is the apex intelligence organization
functioning under the Central Board of Excise &
Customs, Department of Revenue, Ministry of
Finance, entrusted with detection of cases of
evasion of duties of Central Excise and Service Tax
 Earlier known as Directorate General of Anti-Evasion
(DGAE)

In 2004, DGCEI was entrusted with the work of
detecting evasion in service tax

Established in the year 1979 as an independent
wing under the control of Directorate of Revenue
Intelligence, New Delhi with regional units located at
Chennai, Delhi, Kolkata and Mumbai

At present DGCEI, with its Headquarters at New
Delhi, has 6 Zonal Units and 18 Regional Units
 Source of DGCEI’s powers

‘Central excise officer’ not defined under the Act, however

per Section 2(121), words and phrases not defined but
used under the Act, the corresponding definition of CEA to
apply

Section 2(b) of CEA defines ‘central excise officer’ to
include any person invested by CBEC to exercise any of the
powers of a ‘central excise officer’

Per notification 38/2001-CE dated 26-6-2001, officers of
DGCEI appointed as ‘central excise officers’ with the
following powers

Officer of DGCEI Corresponding powers of

Directorate general Chief commissioner
Additional directorate Commissioner
general
Additional director Additional commissioner
Joint director Joint commissioner
Deputy/ Assistant director DC/AC
Senior intelligence officer Superintendent
Intelligence officer Inspector
 FAQs- Search and seizure

Can a person be refused movement outside the searched

premises at any point of time?

Can an assessee ask the officers to visit on an alternative
date?
 Tips for search and seizure

Ask to speak to your legal advisor

Ask for list of items and documents taken

Computer storage devices should be sealed in your presence
THANK YOU