Recently some circulars have been issued regarding the amendments introduced by the Finance Act, 2013, for offences punishable under the provisions of Service Tax, Central Excise and Customs.
These circulars deal with the procedures that should to be followed for arrest and bail and their related formalities, for the persons arrested. They provide that the power to arrest should always be exercised by the authorities with due care and justification and it should be observed how the authorities exercise their powers.
New section introduced:
The Finance Act, 2013 has incorporated a new sub-section (1A) in section 9A stating that the offences dealing with excisable goods, in case the duty involvement is more than Rs. 50,00,000/- and those are punishable under clause (b) or (bbbb) of section 9(1) are cognizable and non-bailable. It also states that the rest of the offences under section 9 are non-cognizable and bailable.
Kinds of offences under Central Excise Act:
There are two types of offences under the Central Excise Act – bailable and non-bailable. Depending upon the kind of offence committed, a person is arrested in either of the categories.
- Bailable offence – A person can be arrested for non-cognizable and bailable offences committed by him. Section 20 and section 21 have been amended to provide that power to grant bail or release any person on a bond can be exercised only for non- cognizable offences. Any person, who is arrested for an offence which is non-cognizable, has to be released on bail, if he can provide it. If such person fails to provide bail, he is produced before the magistrate. An officer not below the rank of Superintendent of Central Excise can exercise these powers including powers to release a person bail as per Section 21. Moreover the provisions of section 91 along with section 89 have to be strictly followed.
- Non-bailable offence – These are offences where bail cannot be claimed as a matter of right. It is the discretion of the Magistrate to release a person who is guilty of a non-bailable offence, on bail.
Procedure for arrest:
The provisions of the Code of Criminal Procedure 1973 relating to the procedure of arrest have to be followed. It is stated that the Commissioner should ensure that all officers should comply with the provisions of the Code of Criminal Procedure.
There is no prescribed format for arrest memo but an arrest memo but it should be provided by the person who arrests a person and it should include brief facts of the case, details of the arrested person, evidences against the person, Sections of the Finance Act, 1994 or other statute which relates to the case and the person and the date and time of arrest. The arrest memo should be given to the person arrested.
A report regarding the persons who are arrested has to be sent to the jurisdictional Chief Commissioner.
