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DRI and forced 'penalty' during investigations – Sentenced before Trial!
DRI tactics - kangaroo Court
The eminent writer has highlighted a hitherto unheard modus operandi supposedly prevalent in the Directorate of Revenue Intelligence, select quarters that is, of collecting as voluntary deposit the duty amount and penalty and interest from an alleged evader of customs duties. Just before the article culminates, the author brings into limelight the dark underbelly in the organization and which I must admit immediately prods one to think that either the writer is too conversant with the organizational modules or is actually trying to ghost write. All said, no offence is meant to the writer. Yet the fact remains that a good deed is being done by highlighting a fact (mentioned in the penultimate paragraphs) which no departmental officer would dare to confront his superiors with except speak about in hushed tones.
As for the RTI Act, section 24 and the exemption to DRI, I would draw attention to the latest CIC decision carried by TIOL in the case of V.R.Chandran vs. Directorate of Enforcement [2010-TIOL-01-CIC] and request the erudite writer to check out whether the same can be applied for getting information from the agency, of course, in the matter of ‘janm-sidh-adhikar’ et al.
Coming to the crux of the tale, the writer while lambasting these ‘select few’ DRI specialists, scornfully termed as ‘Goonda Raj(ahs)’, also mentions that all this is being done to cobble up the ‘reward amount’ ASAP and for this purpose the officers advise the party’s to approach the Settlement Commission for a quick settlement. It also needs mention that in terms of section 127B(2) of the Customs Act, there is an option for the party to knock the doors of the Settlement Commission if six months have elapsed since seizure of goods, books of accounts, other documents and sale proceeds, even if SCN demanding duty is not issued.
I am of the view that advising, even if that means cajoling a party to approach Settlement is a prudent action on the part of the DRI officers and calls for no contempt – after all many are unaware that there exists a forum called Settlement Commission to wash their sins for a fair deal. As for the section 114A referred to in the piece I may mention that this mandatory section comes into the picture automatically when the duty of customs and interest payable is confirmed/determined u/s 28 of the Customs Act, 1962 (albeit the fact remains that in the reported case no duty is determined simply because SCN is yet to be issued). There is no need to determine this quantum of penalty u/s 114A by the adjudicating authority as it is equivalent to duty or interest [read ‘and’ as clarified in Board Circular 61/2002-Cus. dated 20.09.2002] and the section makes it mandatory on the party to pay this amount, usage of the word ‘shall’ refers. Moreover, since the offending party, call it voluntarily or otherwise [read fear, further interrogation, judicial/police custody] pays up the duty amount, there is not much of determination left in the matter of penalties and interest u/s 28AB of the Act as far as they are to be concerned. In fact, if the party pays the duty/interest amount [which in this case is before issue of SCN], the penalty payable u/s 114A would invariably stand reduced to 25% in terms of first proviso to the section.
A fair deal, therefore, I would say, if the party “willingly” pays up the 25% penalty amount involved, even if that means that it is the DRI officers who ‘goaded’ them to do the needful!
I have allowed my message (against the outburst in the article, ghostly or otherwise), which could have been bit briefer, to grow in size simply to highlight that there cannot be a “monosyllabic no” to the poser made by the learned writer.
Yet, the underlying fact remains that no one can be above the law, DRI or anyone else – after all it is not a Kangaroo court!
sachin deshmukh
29/11/2010
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