Withdrawal of Prosecution in Central Excise old cases

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Circular No. 1018/6/2016-CX dated February 29, 2016 [F. No. 96/54/2014-CX.1] specified the situation regarding withdrawal from prosecution in Central Excise cases older than 15 years involving duty less than Rs.25 lakhs.

Circular No. 1018/6/2016-CX

F. No. 96/54/2014-CX.1

Government of India

Ministry of Finance

Department of Revenue

Central Board of Excise & Customs

New Delhi, dated the 29th February, 2016

Subject: – Withdrawal from prosecution in Central Excise cases older than 15 years involving duty less than rupees five lakhs.- reg.

CAG submitted its report regarding administration of prosecution and penalty in  Central Excise and Service Tax wherein regarding withdrawal of old cases of  prosecution, it noted that “though the discretion to allow withdrawal of prosecution  ultimately rests with the Court, it is the department’s responsibility to ensure periodic  monitoring of the status of long pending cases as to ensure that cases which in the  opinion of the department merit withdrawal are being brought to the notice of the Court  alongwith all supporting facts at the proper time in terms of Sections 257 and 321 of  CrPC 1973.”

1. The issue has been examined. The present limit for arrest and prosecution in Central Excise cases is Rupees one crore which was made effective vide Circular No.  1010/17/2015-CX dated 23.10.2015. Earlier, the limit for launching prosecution was  Rs.25 Lakhs, which came into effect vide letter F.No. 208/31/97-CX6 dated 04.04.1994. Taking into consideration this increase in the limit for prosecution over a period of time,  expenditure involved in continuing with old prosecution and equivalent value of the  present threshold limit of rupees one crore in the past, it was decided to collect  information on prosecution pending in courts for more than fifteen years where the duty involved is less than rupees five lakhs. On the basis of the reports received, it was found that there are 288 cases older than fifteen years, involving duty of rupees five lakh or less. In these 288 cases, the total amount of duty evasion involved was found to be Rs. 2.31 crore, which comes to an average of Rs. 80,000/- per case.

2. Provisions relating to withdrawal of prosecution are contained in Section 257 and Section 321 of the CrPC. Further, in the case of Sheo Nandan Paswan Vs. State of Bihar and Others, (1983) 1 SCC 438, Hon’ble Supreme Court noted, while examining the scope of Section 321, four grounds for seeking withdrawal from prosecution. Out of these four grounds, two relevant grounds for Central Excise are as under:

(i) Inexpediency of the prosecution for reasons of State and Public Policy, and

(ii) Adverse effects that the continuance of the prosecution will bring to the public  interest in the light of the changed situation.

1. In the light of the legal provisions under section 257 and 321 of the Code of  Criminal Procedure 1973, and the judgement of the Hon’ble Supreme Court, it appeared  that Central Excise cases involving duty amount less than Rs. five lakhs and undergoing  prosecution in the courts for more than fifteen years may be considered for withdrawal  from prosecution. Accordingly, these cases where evasion of Central Excise duty is less  than Rs. 5 lakh and pending in court for more than 15 years were brought to the notice of  the Competent Authority suggesting that withdrawal from prosecution would be desirable  in these cases on the following grounds:

4.1 Present limit for arrest and prosecution in Central Excise is Rupees one crore. This enhanced limit of one crore was prescribed on 23.10.2015. Before this date, the limit  since 1994 was rupees twenty five lakhs. The present enhanced monetary limit indicates a  liberal policy of the government in relation to prosecution. If this limit is interpolated to a  value fifteen years back, it would be higher than Rupees five lakh. Therefore, it would be  reasonable to conclude that the equivalent cases, of the cases under consideration, would  not undergo prosecution today,

4.2 Withdrawal from prosecution would be in conformity with the policy of the Government to reduce litigation in taxation,

4.3 Expenditure involved in continuing with such prosecution may not be commensurate with the result likely to be achieved,

4.4 The Human resources saved can be redeployed to garner more revenue for the exchequer.

4.5 Withdrawal of such cases would send a positive message to the manufacturing sector in which policy of “Make in India” is being actively pursued.

1. After due consideration, it has been decided with the approval of the competent  authority to recommend filling of application before the Hon’ble Court to withdraw from  prosecution of the cases where evasion of Central Excise duty is less than Rupees five  lakhs and prosecution is pending for more than fifteen years. Chief Commissioner shall  give direction to the Central Excise Officer in the concerned Commissionerate to request  the Public Prosecutor to file an application requesting the Court to allow withdrawal from  prosecution in accordance with law. It may be noted that on filing of such applications, it  is for Hon’ble Courts to finally decide whether or not to pursue the prosecution.

(Santosh Kumar Mishra)

Under Secretary to the Government of India