Guidelines for launching of prosecution in relation to offences punishable under Customs Act, 1962

                                                                Circular No.27/2015-Customs
F.No.394/68/2013-Cus (AS)
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
(Anti-Smuggling Unit)
*****
New Delhi, the 23rd October , 2015
To
All Chief Commissioners of Customs,
All Chief Commissioners of Customs (Preventive),
All Chief Commissioners of Customs, Central Excise and Service Tax,
All Chief Commissioners of Central Excise and Service Tax,
All Chief Commissioners of Service Tax,
Chief Commissioner (AR), CESTAT,
All Directors General,
Webmaster, CBEC
Sir/Madam,
Subject – Guidelines for launching of prosecution in relation to offences
punishable under Customs Act, 1962- reg.
Attention of the field formations is invited to the existing prosecution
guidelines issued by the Ministry vide order No.394/71/97-CUS (AS) dated
22.06.1999 revising the guidelines issued vide order No.711/16/84-CUS (AS) dated
21st May, 1990 and 20th February, 1992.
2. Since then, several significant changes have been effected in the Customs Act
and other relevant enactments. Amendments and changes were made in section 135
of Customs Act, 1962 vide Finance Act, 2007 and Finance Act, 2013 relating to
threshold limit/categorization of offences. Moreover, section 137 of Customs Act,
1962, has been amended and provisions of compounding of offences had been
incorporated through Finance Act, 2004 and Finance Act, 2009. Amendments were
made in section 104 of the Customs Act, 1962 through Finance Act, 2012 and
Finance Act, 2013 wherein certain offences were made cognizable and non-bailable
and certain other offences were kept as non-cognizable and bailable. Revised
guidelines for arrest and bail were accordingly issued by the Ministry vide order
No.394/68/2013-Cus (AS) dated 17th September, 2013.
3. Keeping in view the above changes, the following revised guidelines for
prosecution in relation to offences punishable under Customs Act, 1962 are issued in
supersession of the earlier guidelines on launching prosecution issued vide
Ministry’s letter No. 394/71/97-Cus (AS), dated the 22nd June, 1999.
2
4. Guidelines for Prosecution:
4.1. Person liable to be prosecuted: As per the provisions of the Customs Act,
1962, prosecution may be launched against any person including legal person in
respect of the offences covered under any of the sections namely 132,133,134,
135,135A or 136 of the Customs Act, 1962.
4.1.1. The decision for launching prosecution should be taken in cases which fulfil
the requirement of the provisions of any of the 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.
4.2. Threshold limit for launching prosecution and exceptions:
4.2.1. Prosecution may be considered in the following categories of cases:
4.2.1.1. Baggage and Outright smuggling cases:
(i) Cases involving unauthorized importation in baggage / cases under Transfer of
Residence Rules, where the CIF value of the goods involved is Rs. 20, 00,000/-
(Rupees twenty lakh) or more;
(ii) Outright smuggling of high value goods such as precious metal, restricted
items or prohibited items notified under section 11 of the Customs Act, 1962 or
goods notified under section 123 of the Customs Act, 1962 or foreign currency where
the value of offending goods is Rs.20,00,000 (Rupees twenty lakh) or more;
4.2.1.2. Appraising Cases/ Commercial Frauds:
(i) In cases related to importation of trade goods (i.e. appraising cases) involving-
(a) wilful mis-declaration in value/description;
(b) concealment of restricted goods or goods notified under section 11 of the
Customs Act, 1962,
where CIF value of the offending goods is Rs. 1,00, 00,000 (Rupees one crore) or
more;
(ii) In cases related to fraudulent availment of drawback or attempt to avail of
drawback or any exemption from duty provided under the Customs Act 1962, if the
amount of drawback or exemption from duty is Rs. 1,00, 00,000 (Rupees one crore)
or more;
(iii) In cases related to exportation of trade goods (i.e. appraising cases) involving,-
(a) wilful mis-declaration in value / description ;
(b) concealment of restricted goods or goods notified under section 11 of the
Customs Act, 1962
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where FOB value of the offending goods is Rs. 1,00,00,000/- (Rupees one crore) or
more.
4.2.2. Exceptions:
 The above 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) indicated at sub para 4.2.1 above
respectively.
4.2.3. Special Cases relating to FICN, arms, ammunitions, wild life etc.:
The threshold limits mentioned in sub para 4.2.1 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 of
value of offending goods involved.
4.3. In respect of cases involving non-declaration of foreign currency by foreign
nationals and NRIs (normally visiting India for travel/ business trips etc.) detected at
the time of departure back from India, exceeding the threshold limits of Rs. 20 lakh
as prescribed under sub-para (4.2) above, if it is claimed that the currency has been
legally acquired and brought into India but not declared inadvertently, prosecution
need not be considered as a routine. The status and business standing of the foreign
nationals/ NRIs, the manner and place of recovery, corroborative evidence, if any to
substantiate the claim of bonafide and proper acquisition but inadvertent nondeclaration,
and other attendant factors may be considered immediately and a
decision taken whether the case involves criminal intent warranting launching of
prosecution or not. Where the prosecution is not considered called for, the case can
be adjudicated by the proper officer and suitable order for confiscation/ fine / penalty
etc. passed.
4.4. It is mentioned that the quantum of punishment under section 135 of the
Customs Act, 1962 is linked with the amount of imports duty/market price of
offending goods/drawback amounts. However, the quantum of punishment in respect
of the offences covered under remaining sections namely 132,133,134, 135A or 136
of the Customs Act, 1962 is not linked with the amount of imports duty/market price
of offending goods/ineligible drawback amount. In these circumstances, the
threshold limit for deciding on launching of prosecution under these sections may be
taken as the value which is applicable for section 135 of the Customs Act, 1962
(refer to para 4.2 & 4.3).
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4.5. It is clarified that prosecution in respect of narcotic drugs and psychotropic
substances may be launched as per the provisions of the NDPS Act, 1985.
4.6. Except in respect of cases covered by sub paras 4.2.1.2 and 4.2.2 above, in all
other cases, prosecution may be launched after due sanction by the Commissioner
/Principal Commissioner (Pr. Commr.) or Additional Director General (ADGRI) /
Principal Additional Director General of Revenue Intelligence (Pr. ADGRI), as the
case may be. Prior approval of the Chief Commissioner / Principal Chief
Commissioner (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 under sub paras 4.2.1.2 and 4.2.2 above.
5. The following aspects may also be kept in view while considering launching
of prosecution for offences under the Customs Act, 1962:-
5.1. 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
offence relating to either of smuggling or of customs duty evasion or of misdeclaration
of value, quantity etc. For this purpose, the Commissioner /Pr. Commr.
or ADGRI / Pr. ADGRI should go through the relevant case file thoroughly and
ascertain for themselves that the definite involvement of different
partners/directors/executives/officials, against whom reasonable evidence about their
involvement in the offence exists and should be proceeded against, while launching
the prosecution.
6. Stage for launching of prosecution: Normally, prosecution may be launched
immediately on completion of adjudication proceedings. However, prosecution in
respect of 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 may preferably be launched immediately after issuance of show cause
notice.
6.1. Further, in following cases investigation may be completed in time bound
manner preferably within six months and adjudication may be expedited to facilitate
launching of prosecution. These cases are:
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(a) In case where arrest has been made during investigation (for commercial fraud
cases as well as outright smuggling cases) or in the case of a habitual offender.
(b)In case where arrest has not been made but it relates to outright smuggling of
high value goods such as precious metal, restricted items or prohibited items
notified under section 11 or goods notified under section 123 of the Customs Act,
1962 or foreign currency where the value of goods is Rs. 20, 00,000 (Rupees
twenty lakh) or more.
6.2. In a recent judgement passed by Hon’ble Supreme Court of India in the case
of Radhe Shyam Kejriwal [2011(266)ELT 294 (SC)], the Apex court had, interalia,
observed that (i) adjudication proceedings and criminal proceedings can be launched
simultaneously;(ii) decision in adjudication proceedings is not necessary before
initiating criminal prosecution; (iii) adjudication proceedings and criminal
proceedings are independent of each other in nature and (iv) the findings against 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.
6.3. 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.
6.4. 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.
7. Procedure for launching prosecution:
7.1. In all such cases, where prior approval of Chief Commissioner/Principal CC
or DGRI / Pr. DGRI is necessary for launching prosecution, an investigation report
for the purpose of launching prosecution (as per Annexure- I), should be carefully
prepared and signed by the Assistant Commissioner / Assistant Director concerned.
The investigation report, after careful scrutiny (for incorporation of all relevant
facts) should be endorsed by the Commissioner/ Pr. Commr. or ADGRI/ Pr.
ADGRI. The Chief Commissioner/Principal CC or DGRI / Pr. DGRI should ensure
that a decision about launching of prosecution or otherwise, is taken after careful
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analysis of evidence available on record and communicated to the Commissioner /
Principal CC or ADGRI / Pr. ADGRI within a month of the receipt of the proposal.
7.2. In all other cases, where prior approval of Chief Commissioner/Principal CC
or DGRI / Pr. DGRI is not required, the decision about launching of prosecution or
otherwise should be taken by the Commissioner/ Pr. Commr. or ADGRI /
Pr. ADGRI after careful application of mind and analysis of evidence brought on
record. This should be completed within a month of adjudication of the case
(unless it is decided to go for prosecution even prior to adjudication in certain
category of cases mentioned at para 6 above).
7.3. Prosecution should not be filed merely because a demand has been confirmed
in the adjudication proceedings particularly in cases of technical nature or where
interpretation of law is involved. One of the important considerations for deciding
whether prosecution should be launched is the availability of adequate evidence.
The standard of proof required in a criminal prosecution is higher as the case has to
be established beyond reasonable doubt whereas the standard of proof in
adjudication proceedings is decided on the basis of preponderance of probability.
Therefore, even cases where demand is confirmed in adjudication proceedings,
evidence collected should be weighed so as to likely meet the test of being
reasonable doubt for recommending & sanctioning prosecution. Decision should be
taken on case- to- case basis considering various factors, such as, gravity of
offence, quantum of duty evaded and the nature as well as quality of evidence
collected.
7.4. It is reiterated that in order to avoid delays, Commissioner / Pr. Commr. or
ADGRI / Pr. ADGRI / adjudicating authority should indicate, at the time of passing
the adjudication order itself as to whether he considers the case fit for prosecution,
so that it could be further processed for launching prosecution. Where at the time of
adjudication proceedings, no view has been taken on prosecution by the adjudicating
authority, the adjudication section shall resubmit the file within 15 days from the
days of issue of adjudication order to the adjudicating authority/Commissioner to
take a view of prosecution. Where the prosecution is proposed before the
adjudication of the case, Commissioner /Pr. Commr. Or ADGRI / Pr. ADGRI shall
record the reason for the same and the adjudicating authority shall be informed of
the decision so that there is no need for him to examine the case subsequently from
the perspective of prosecution.
7.5. It is observed that the delays in the Court proceedings occur due to the nonavailability
of records required to be produced before the Magistrate. As a matter
of practice, whenever a case is taken up for seeking the approval for launching
prosecution, an officer should be nominated/designated, who shall immediately take
charge of all documents, statements and other exhibits, that would be required to be
7
produced before a Court. The list of exhibits etc. should be finalised in consultation
with the Public Prosecutor at the time of drafting of the complaint. Such exhibits
should be kept in the safe custody. Where a complaint has not been filed even after
a lapse of three months from the receipt of sanction for prosecution, the reason for
delay shall be brought to the notice of Chief Commissioner/Principal CC or DGRI /
Pr. DGRI by the Commissioner /Pr. Commr. or ADGRI / Pr. ADGRI, as the case
may be, who are responsible in the case for ensuring the timely filing of the
complaint.
8. Publication of names of persons convicted under Customs Act,1962
Section 135-B of the Customs Act, 1962, grants the power to publish
name/place of business etc. of persons convicted under the Act by a Court of law.
It is observed that this power is being exercised very sparingly. In all cases in
respect of all persons, who are convicted under the Customs Act, 1962 the
department should make a prayer to the Court to invoke this section.
9. Monitoring of Prosecution
9.1. It is emphasized that prosecution, once launched, should be vigorously
followed. The Commissioner /Pr. Commr. or ADGRI / Pr. ADGRI should monitor
cases of prosecution at monthly intervals and take the corrective action wherever
necessary to ensure that the progress of prosecution is satisfactory.
9.2. For 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.
9.3. 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.
10. Appeal against Court order in case of inadequate
punishment/acquittal:
10.1. Commissioner / Pr. Commr. responsible for the conduct of prosecution or
ADGRI / Pr. ADGRI (in respect of cases booked by DGRI), should study the
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judgement of the Court and, where it is found that the accused person have been let
off with light punishment than what is envisaged in the Customs Act, 1962 or has
been acquitted despite the evidence being strong, the question of filing appeals under
law should be considered within the time period.
10.2. The case of acquittal by the Court can be appealed against in terms of section
378(4) of Cr. P.C. by the complainant. In these cases approval of the Chief
Commissioner/Principal CC or DGRI / Pr. DGRI as the case may be should be
obtained before filling appeal.
11. Procedure for withdrawal of prosecution
11.1. Procedure for withdrawal of sanction order of prosecution
In cases where prosecution has been sanctioned but not filed and new facts or
evidences have come to the notice of the Commissionerate or the DGRI which
warrant review of the sanction for prosecution, it should be immediately brought to
the notice of the sanctioning authority. After considering the new facts and evidences
the sanctioning authority may recommend withdrawal of sanction order to the next
higher authority. In case Commissioner / Pr. Commr. or ADGRI / Pr. ADGRI is the
sanctioning authority, the recommendation will be submitted to Chief Commissioner
/ Principal CC or DGRI / Pr. DGRI. The recommendation will be submitted to the
Board (Member of Policy Wing concerned) in such cases where sanctioning
authority is Chief Commissioner / Principal CC or DGRI / Pr. DGRI. All past cases
where filing of prosecution is pending beyond three months of the sanction for
prosecution shall be reviewed in the light of these instructions and necessary action
taken to either file complaint expeditiously or to propose withdrawal of sanction.
11.2. Prosecution for withdrawal of Complaint already filed for prosecution
11.2.1. In cases where the complaint has already been filed in the court, it will
be up to the court to decide whether or not to pursue prosecution in terms of section
257 and 321 of Cr. P.C, 1973. If the order for withdrawal has been given by a court,
the prosecution can be withdrawn by the Assistant/ Deputy Commissioner or
Assistant/Deputy Director after getting a formal order from the Chief Commissioner/
Principal CC or DGRI/ Pr. DGRI as the case may be.
11.2.2. As per decision of Hon’ble Supreme Court in the case of Radhe Shyam
Kejriwal [2011(266) ELT 294 (SC)]:
(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
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circumstances cannot be allowed to continue, underlying principle being the higher
standard of proof in criminal cases.
11.2.3. 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.
12. Compounding of offence:
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 / Pr. Commr. or ADGRI / Pr. ADGRI as
per Circular No. 54/2015-Cus. dated 30.12.2005.
13. Prosecution Register and dissemination of information
13.1. A Prosecution Register in the form as Annexed to this circular should be
maintained in the prosecution cell of the Commissionerate headquarters/Custom
House / DRI formations. Wherever the prosecution is compounded under section 137
of CA’62 by the Chief Commissioner, suitable endorsement may be kept in the
prosecution register.
13.2. It may be mentioned that offences under section 132 and 135 of the Customs
Act, 1962 are scheduled offences under the Prevention of Money Laundering Act,
2002(PMLA). In Customs’ prosecution cases warranting action under PMLA,
instructions have been issued vide F. No.394/51/2009-Cus (AS) dated 14.09.2009 for
monthly reporting of such cases to the Directorate of Enforcement in the prescribed
format. Once cognizance of complaint in respect of offence under section 132 and
135 of CA’62 filed by the Department is taken by the court, and reference has been
made to the Directorate of Enforcement for taking action under PMLA, suitable
remarks should be made in the prosecution register. In case, the prosecution under
PMLA is separately proposed to be launched by the Directorate of Enforcement, and
intimation is received to that effect in the prosecution unit of the Commissionerate/
DRI, suitable entry should be kept in the register for appropriate liaison with the
Directorate of Enforcement and further action as per the direction of Special Court.
13.3. Further instructions have been issued vide F. No. 394/124/2011-Cus (AS)
dated 17.07.2012 clarifying that all offences under Customs Act, 1962 shall be
within the ambit of ‘Plea Bargaining’ and any application for the same shall be dealt
with as per the provisions in Chapter XXIA of Code of Criminal Procedure.
Wherever ‘Plea Bargaining’ as per the provisions of chapter XXIA of Cr Pc is
permitted by the competent court, necessary endorsement may be made in the
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prosecution register for proper record and monitoring. Similar record may be kept in
respect of appeal against court order and / or withdrawal of prosecution as detailed in
para 10 to 12 above.
13.4. The field formations should upload/update the information regarding
prosecution initiated in the Management Information System (MIS) under prescribed
Proforma.
14. Inspection of prosecution work:
Director General (Inspection) and Chief Commissioners/Principal CCs, while
carrying out inspection of the Commissionerates/Custom Houses, should specially
check all the above mentioned points, and make a mention about implementation of
the guidelines in their Inspection Reports.
15. 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.
16. 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 cases of smuggling/duty evasion and also in respect of
cases having money laundering angle and to provide guidance and support to the
investigating officers.
17. It has also been noticed that the officers posted for prosecution work do not
have proper training. The Director General, National Academy of Customs Excise
and Narcotics (NACEN), Faridabad, should therefore, organize separate training
courses on prosecution/arrests etc. from time to time and also should incorporate a
series of lectures on this issue in the courses organized for anti-smuggling. The
Commissioner / Pr. Commr. or ADGRI / Pr. ADGRI should judiciously sponsor
officers for such courses.
18. The field formations are hereby directed to circulate these guidelines to all the
formations under their charge. Difficulties, if any, in implementation of the aforesaid
guidelines may be brought to the notice of the Board.
19. Please acknowledge receipt of this circular.
Yours faithfully,
Enclosure: As above
 (A.C.MALLICK)
 Under Secretary to the Govt. of India
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ANNEXURE – I
INVESTIGATION REPORT FOR THE PURPOSE OF LAUNCHING
PROSECUTION AGAINST___________________________________________
COMMISSIONERATE___________________________/Divisions
1. Name & address of the person (s) including legal persons.
2. Nature of offence including commodity :
3. Charges :
4. Date/Period of offence :
5. Amount of duty Evasion/value of contraband goods involved :
6. Particulars of persons proposed to be prosecuted :
(a) Name
(b) Father’s name
(c) Age__________________ Sex________________
(d) Address
(e) Occupation
(f) Position held in the company/firm
(g)Role played in the offence
(h) Material evidence available against the accused (Please indicate separately
documentary and oral evidence)
(i) Action ordered against the accused in adjudication proceedings
7. Brief note as to why prosecution is recommended
Place:
Date:
(Deputy/Assistant Commissioner)
Or (Deputy/Assistant Director)
8. I have carefully examined the investigation report and find it in order for filing
criminal complaint under section (s) (-------) of Customs Act, 1962.
Commissioner/ Pr. Commr.
Or ADGRI/ Pr. ADGRI
12
ANNEXURE – I (contd.)
NOTE
(A) The proposal should be made in the above form in conformity with the
guidelines issued by the Ministry. With regard to column 3 above, all the
charging sections in the Customs Act, 1962 and other allied Acts should be
mentioned. If the provision for conspiracy as under section 120-B of IPC is
sought to be invoked, this fact should be clearly mentioned. With regard to
S.NO 6, information should be filed separately for each person sought to be
prosecuted .
(B) A copy of the show cause notice as well as the order of adjudication (where
applicable) should be enclosed with this Report. If any appeal has been filed
against the adjudication order, this fact should be specifically stated.
(C) Where prosecution is being recommended even prior to completion of
adjudication, as per guidelines, brief reasons therefore be also indicated in
the brief note mentioned at Sl. No. 7 above.
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ANNEXURE – II
FORMAT OF PROSECUTION REGISTER
Sl.
No.
Case
investigate
d by
Division
/
preventi
ve unit/
appraisi
ng
group/
DRI(Hqr
.)/ Zonal
Unit
File
no.
Criminal
complaint
no.
Date of
detection/
seizure
Name of
accused
person
being
prosecute
d and
address
Register
no.
Nature of
offence
1 2 3 4 5 6 7 8 9
Date of judgement Appeal statusdate/
court in
which filed
Date of hearing Date of
referral to
Directorate of
Enforcement
Remarks/signature
with name and
date (Officer filing
the complaint)
16 17 18 19 20
Amount of duty /
seizure/value
confirmed &
O-I-O No.
Period of
evasion
Date of
sanction of
prosecution
Date of
filling of
complaint
Date of
taking
cognisance
by court
Name of counsel
10 11 12 13 14 15

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For mor details , pl go this link http://www.cbec.gov.in/resources//htdocs-cbec/ombudsman-guidelines.pdf;jsessionid=FA7AAFBDC089EB7599E933C8BE6EA05B

The Indirect Tax Ombudsman Guidelines 2011
The Guidelines are introduced with the objective of enabling the resolution of
complaints relating to public grievances against the Customs, Central Excise and
Service Tax Department and to facilitate the satisfaction or settlement of such
complaints.
CHAPTER I
PRELIMINARY
1. Short title, commencement, extent and application
I. These Guidelines shall be known as the Indirect Tax Ombudsman
Guidelines, 2011.
II. They shall come into force from 11th May, 2011.
2. Definitions
I. ‘authorized representative’ means a person duly appointed and
authorized by a complainant to act on his behalf and represent him in the
proceedings under these guidelines for consideration of his complaint.
II. ‘award’ means an award passed by the Ombudsman in accordance with
these Guidelines.
III. ‘complaint’ means a representation in writing or through electronic means
containing an administrative grievance alleging deficiency in the working of
the Customs, Central Excise and Service Tax Department as mentioned in
clause 9 of the Guidelines.
IV. ‘guidelines’ means The Indirect Tax Ombudsman Guidelines, 2011.
V. ‘Customs, Central Excise and Service Tax authority complained
against’ means the junior-most Customs, Central Excise and Service Tax
officer not below the rank of a Superintendent of Central Excise, or an
Appraiser of Customs or a Superintendent of Customs who has given the
cause of grievance to the complainant. If the grievance has been caused by
an official lower in rank than a Superintendent of Central Excise or an
Appraiser of Customs or a Superintendent of Customs, then this term shall
mean the officer in the rank Superintendent of Central Excise or an
Appraiser of Customs or a Superintendent of Customs who is in-charge of
such official.
VI. ‘Ombudsman’ means any person appointed under Clause 3 of these
Guidelines.
CHAPTER II
ESTABLISHMENT OF THE OFFICE OF INDIRECT TAX OMBUDSMAN
3. Appointment and Tenure
I. On the recommendations of a Committee consisting of the Secretary,
Department of Revenue in the Ministry of Finance, the Chairman,
Central Board of Excise and Customs and the Member (Personnel &
Vigilance), Central Board of Excise and Customs (CBEC), the Central
Government may appoint one or more persons as Ombudsman.
II. The Ombudsman selected shall be a person who has held a post in the
Government of India in the HAG pay scale of ` 67,000 -79,000 on regular
basis for at least one year or in a higher grade and shall preferably be a
resident of the city where he/she is proposed to be appointed. He/she
shall be a serving officer (as on the last date for receipt of applications )
preferably of the Indian Revenue Service (Customs and Central Excise).
If a suitable officer from that service is not available, officers of equivalent
grade of any other group „A‟ service of the Central Government may be
appointed as Ombudsman. When appointed as Ombudsman, the officer,
if he/she is still in service under the Government of India, shall seek
retirement from Government service before entering upon his office as an
Indirect Tax Ombudsman.
III. The Ombudsman shall be independent of the jurisdiction of the Customs,
Central Excise and Service Tax department.
IV. The Ombudsman shall be appointed for a tenure of 2 years extendable
by one year based on performance appraisal or till the incumbent attains the
age of 63 years, whichever is earlier. There shall be no reappointment.
Performance appraisal shall be made by the Committee constituted in clause
3.I.
4. Remuneration
The Ombudsman shall be allowed pay and allowances as applicable to a
Central Government Officer in the HAG+ pay scale of ` 75500-80,000. Any
pension to which he is entitled from the Central Government / State
Government shall be deducted from his salary.
5. Territorial Jurisdiction
The Central Government shall specify the territorial jurisdiction of each
Ombudsman.
6. Location of offices
The offices of Indirect Tax Ombudsman shall be located at Delhi, Mumbai,
Chennai, Kolkata, Bangalore, Ahmedabad and Lucknow.
7. Secretariat
Each Ombudsman shall be provided with an office space of appropriate size
and a secretariat staff consisting of a Private Secretary, Tax Assistant and a
Peon by the Central Board of Excise and Customs.
CHAPTER III
8. Powers and Duties
I. The Ombudsman shall have the powers to –
a) receive complaints from taxpayers on any matters specified in
clause 9;
b) consider such complaints and facilitate their satisfaction or
settlement by agreement, through conciliation and mediation
between the Customs, Central Excise and Service Tax Department
and the aggrieved parties or by passing an „award‟ in accordance
with the Guidelines;
c) require the Customs, Central Excise and Service Tax Authority
complained against or any other related Customs, Central Excise
and Service Tax Authority to provide any information or furnish
certified copies of any document relating to the subject matter of the
complaint which is or is alleged to be in its possession; provided
that in the event of failure of such authority to comply with the
requisition without any sufficient cause, the Ombudsman may, if he
deems fit, draw the inference that the information, if provided or
copies if furnished, would be unfavorable to the concerned
Customs, Central Excise and Service Tax Authority;
d) suggest remedial measures for redressal of grievances; and
e) report his findings to the Secretary, Department of Revenue,
Government of India and the Chairman CBEC for appropriate action
against erring officials;
f) Ombudsman shall not have any authority over the Central Board of
Excise and Customs and Directorates under Central Board of
Excise and Customs as these are Attached offices of Central Board
of Excise and Customs.
II a) In cases where action is to be taken by the CBEC and the
Directorates under the CBEC which are attached offices of the
CBEC, the Indirect Tax Ombudsman shall only have powers of
recommendation.
b) The Indirect Tax Ombudsman shall not have jurisdiction in cases
where proceedings have been initiated under Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974
and Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988.
III The Ombudsman shall have the following duties:
a) to exercise general powers of superintendence and control over his
office and be responsible for the conduct of business in his office;
b) to maintain confidentiality of any information or document coming
into his knowledge or possession in the course of discharging his
duties and not to disclose such information or document to any
person except with the consent of the person furnishing such
information or document; provided that nothing in this clause shall
prevent the Ombudsman from disclosing information or documents
furnished by a party in a complaint to the other party or parties, to
the extent considered by him to be reasonably required to comply
with the principles of natural justice and fair play in the
proceedings;
c) to protect individual taxpayer‟s rights;
d) to identify issues that increase the compliance burden or create
problems for taxpayers, and to bring those issues to the attention
of the CBEC and the Ministry of Finance;
e) to send a monthly report to the Chairman, CBEC and Secretary,
Department of Revenue in the Ministry of Finance recommending
appropriate action. The report shall also highlight cases where
action needs to be taken against erring Customs, Central Excise
and Service Tax authorities for their failure to redress the
grievance. The report will be accompanied with primary evidence
needed to initiate action against the delinquent persons;
f) to furnish a report every year containing a general review of
activities of the office of the Ombudsman during the preceding
financial year to the Secretary, Department of Revenue, Ministry of
Finance and the Chairman, CBEC along with such other
information as may be considered necessary by him/her. In the
annual report, the Ombudsman, on the basis of grievances
handled by him, will review the quality of the working of the
Customs, Central Excise and Service Tax Department and make
recommendations to improve the indirect tax administration; and
g) to compile a list of „awards‟ passed by it between April and March
of each financial year in respect of every Customs, Central Excise
and Service Tax Authority complained against, by name, and
report it to the controlling Chief Commissioners of the officers
concerned and the Chairman, Central Board of Excise and
Customs before the end of April so that this information can be
reflected in the Annual Confidential Reports of the officers
concerned.
CHAPTER IV
PROCEDURE FOR REDRESSAL OF GRIEVANCE
9. Grounds on which complaint shall be filed:-
I. A complaint on any one or more of the following grounds alleging
deficiency in the working of the Customs, Central Excise and
Service Tax Department may be filed with the Ombudsman:
(a) delay in the issue of refunds or rebate beyond time limits
prescribed by law or under the relevant instructions issued from
time to time by the Central Board of Excise and Customs;
(b) delay in adjudication;
(c) delay in registration of tax payers;
(d) delay in giving effect to Appellate orders;
(e) non adherence to the principle of “ First Come First Served” in
sending refunds;
(f) non adherence to the rules prescribed for disbursement of
drawback;
(g) non acknowledgement of letters or documents sent to the
department;
(h) delay in release of seized books of account and assets, after
the proceedings under the Customs, Central Excise and
Service Tax statutes in respect of the years for which the books
of account or other documents are relevant are completed;
(i) non adherence to prescribed working hours by Customs,
Central Excise and Service Tax officials;
(j) unwarranted rude behaviour of Customs, Central Excise and
Service Tax officials with assessees;
(k) any other matter relating to violation of the administrative
instructions and circulars issued by the Central Board of Excise
and Customs in relation to Customs, Central Excise and
Service Tax administration.
Provided that, if on any of the grounds above, the responsibility
for taking action is with the Central Board of Excise and
Customs or on a Centralized authority eg., {Director General
(Systems) }, then the Ombudsman shall not have the power to
pass an award as specified in para 13 below. In such cases,
the decision of the Ombudsman shall be recommendatory in
nature and shall be forwarded in writing to the Revenue
Secretary or the Chairman, CBEC or the centralized authority,
as the case may be.
II Central Board of Excise and Customs may include any other ground
on which a complaint may be filed with the Ombudsman.
10. Procedure for filing the complaint
I. Any person, who has a grievance against the Customs, Central
Excise & Service Tax Department under the Government of India‟s
Department of Revenue, may, himself or through his authorized
representative, if any, make a complaint against the concerned
Customs, Central Excise and Service Tax official in writing to the
Ombudsman having jurisdiction over that office.
II.
a. The complaint shall be duly signed by the complainant or his
authorized representative, if any, and shall clearly state the
complainant‟s name and address, the name of the office and official
of the Customs, Central Excise and Service Tax office against whom
the complaint is made, the facts giving rise to the complaint
supported by documents, if any, relied on by the complainant and the
relief sought from the Ombudsman;
b. A complaint made through electronic means shall also be accepted
by the Ombudsman and a print out of such complaint shall be taken
on the record of the Ombudsman;
c. A printout of the complaint made through electronic means shall be
signed by the complainant at the earliest possible opportunity before
the Ombudsman takes steps for conciliation or settlement.
d. The signed printout shall be deemed to be the complaint and it shall
relate back to the date on which the complaint was made through
electronic means.
 III No complaint to the Ombudsman shall lie unless:-
(a) the complainant had, before making a complaint to the Ombudsman,
made a written representation to the Grievance Cell of the concerned
Customs, Central Excise and Service Tax office and did not receive
any reply within one month from the date of its receipt by the
Grievance Cell.
(b) where the complainant had made a complaint in writing to the
Grievance Cell of the concerned indirect tax office and he is not
satisfied with the reply given to him.
(c) where the complainant had before making a complaint to the
Ombudsman, made a written representation to the Customs, Central
Excise and Service Tax authority superior to the one complained
against and either such authority had rejected the complaint or the
complainant had not received any reply within a period of one month
after such authority had received his representation or the
complainant is not satisfied with the reply given to him by such
authority;
(d) the complaint is made not later than one year after the complainant
has received the reply of the concerned Customs, Central Excise and
Service Tax office to his representation or, in case, where no reply is
received, not later than one year and one month after the
representation to the Customs, Central Excise and Service Tax
Authority;
(e) the complaint is not in respect of the same subject matter which was
settled through the Office of the Ombudsman in any previous
proceedings whether or not received from the same complainant or
any one or more of the parties concerned with the subject matter; and
(f) the complaint is not frivolous or vexatious in nature.
IV. No Complainant shall be made to the Indirect tax Ombudsman on an
issue which has been or is the subject matter of any proceeding in an
appeal, revision, reference or writ before any Customs, Central
Excise and Service Tax Authority or Appellate Authority or Court.
11. Proceedings to be summary in nature
 The Ombudsman shall not be bound by any legal rules of evidence
and may follow such procedure that appears to him to be fair and
proper. The proceedings before the Ombudsman shall be summary in
nature.
12. Settlement of complaints by agreement
I. As soon as it may be practicable so to do, the Ombudsman shall
cause a notice of the receipt of any complaint along with a copy of the
complaint to be sent to the Customs, Central Excise and Service Tax
Authority Complained Against and endeavour to promote a
settlement of the complaint by agreement between the complainant
and such authority through conciliation or mediation;
II. For the purpose of promoting a settlement of the complaint, the
Ombudsman may follow such procedure as he may consider
appropriate.
13. Award by the Ombudsman
I. If a complaint is not settled by agreement within a period of one month
from the date of receipt of the complaint or such further period as the
Ombudsman may consider necessary, he may, subject to the proviso
in para 9.I ante, pass an award after allowing the parties a
reasonable opportunity to present their case. He shall be guided by
the evidence placed before him by the parties, the principles of
Customs, Central Excise and Service Tax law and practice,
directions, circulars, instructions and guidelines issued by the Central
Board of Excise and Customs or the Central Government from time to
time and such other factors which in his opinion are necessary in the
interest of justice.
II. The „award‟ passed under sub-clause (1) above shall be a speaking
order comprising of the following:
a) Directions to the concerned Customs, Central Excise and Service
Tax Authority on performance of its obligations like expediting
delayed matters, giving reasons for decisions/orders and issuing
apology to complainants etc., except a direction affecting the
quantum of tax assessment or imposition of penalties under the
Customs, Central Excise and Service Tax statutes;.
b) A token compensation amount not exceeding ` 5000/-(Rupees
Five Thousand only) for the loss suffered by the complainant.
c) Designation of the Customs, Central Excise and Service Tax
officer to whom the letter of acceptance of the award is to be
communicated as detailed in clause 13.4.
III A copy of the „award‟ shall be sent to the complainant and the
Customs, Central Excise and Service Tax Authority complained
against.
IV The „award‟ shall be binding on the concerned Customs, Central
Excise and Service Tax office as well as on the complainant provided
that an award shall not be binding on the Customs, Central Excise and
Service Tax office unless the complainant furnishes to it, within a
period of 15 days from the date or receipt of a copy of the award, a
letter of acceptance of the award in full and final settlement of his
complaint. If the complainant does not accept the Award passed by the
Ombudsman or fails to furnish his letter of acceptance of within the
said period of 15 days or within such time, not exceeding a period of 15
days or within such time, not exceeding a period of 15 days that may
be granted by the Ombudsman, the award shall lapse and be of no
effect.
V Any token compensation given as a part of the award shall be paid by
the concerned Customs, Central Excise and Service tax office out of
the budget allocated under the head „Office Expenses‟ of the office of
the concerned Customs, Central Excise and Service Tax Authority
complained against. Such payments shall take priority over any other
expenditure from this allocation.
 VI The Customs, Central Excise and Service Tax Authority complained
against shall, within one month from the date of the award, comply with
the award and intimate compliance to the Ombudsman.
CHAPTER V
MISCELLANEOUS
14 Removal of difficulties
If any difficulty arises in giving effect to the provisions of these
Guidelines, the Central Government may make such provisions not
inconsistent with the Customs, Central Excise and Service Tax
statutes or the Guidelines as it appears to it to be necessary or
expedient for removing the difficulty.