SUMMONS UNDER CENTRAL EXCISE – PRESENCE OF A LAWYER

By

K.Vijay Kumar, M.A.,B.Ed., B.L.,

SUPERINTENDENT OF CENTRAL EXCISE

 

Though it is not often that assesses are summoned before Central Excise Officers, usually, these summons create quite a controversy on one question "Can a person summoned have the right to have an advocate to assist him? Usually, consultants (mostly ex-employees of the department) insist that their clients have a right to have the presence of an advocate and mostly departmental officers are very adamant in not allowing advocates to be present. Let's see the relevant provisions of the law.

 

Section 14 of the Central Excises & Salt Act, 1944 states:

 

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 things in any inquiry which such officer is making for any of the purposes of this Act. A summons to produce documents or other things may be for the production of certain specified documents or things of for the production of all documents o things of a certain description in the possession or under the control of the person summoned.
   
2. All persons so summoned shall be bound to attend, either in person or by an authorized 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 exemption under Sections. 132 and 133 of the code of civil procedure, 1908 (5 of 1908) shall be applicable to requisitions for attendance under 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).
   

 

 

From the Section it is clear that (1) persons can be summoned to give evidence or to produce a document or any other thing in any enquiry which such officer is making.

 

All persons summoned shall be bound to attend either in person or by an authorized agent as such officer m ay direct.

 

So it is the officer who decides whether the summoned person has to attend himself or by an authorized agent. Some Advocates have argued that, "as such officer may direct" relates to "bound to attend" and not to the person or authorized agent. Sometimes lawyers are against that they are not allowed to be present when statements are recorded from their clients. Some Advocates claim that it is a constitutional right to have the presence of a lawyer. In the famous Nandini Satpathy case, the Hon'ble Supreme Court held that if an accused person expresses his wish to have his lawyer during examination, this facility should not be denied. It is this case that many lawyers rely on, while insisting on their right to be present when their clients are summoned to give evidence before a Central Excise Officer. But it is often (conveniently) forgotten that the Nandini Satpathy case is not relevant to Central Excise & Customs matters.

 

 

In "Romesh Chandra Mehta V. State of West Bengal, the Hon'ble Supreme Court held that a person who was asked to give evidence under the Sea Customs act is not an accused. In Ilias V. Collector of Customs, madras, the Supreme Court 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". ) Thus the ratio of Nandini Satpathy case is applicable to an accused before a Police Officer, and not to a person summoned under the Central Excise s & Salt Act or Customs Act, because the person summoned is not an accused and the officer summoning is not a Police Officer.

 

The view was emphatically reiterated by the Hon'ble Supreme Court in Poolpandi V. Superintendent of Central Excise – 1992 (60) ELT 14 (S.C) where it was pointed out that the first case was one in which 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.

 

Based on this decision, the Hon'ble High Court of Kerala recently held "we, therefore, conclude the appellant cannot claim a right to be assisted or accompanied by legal practitioner of his choice during the time of inquiry under section 14 of the Act – Prakash Kumar Choudhary v. union of India – 1996 (83) ELT 45 (Ker).

 

Thus the position is very clear that a person summoned before a Central Excise Officer does NOT have the right to be accompanied by an Advocate.

EXCISE LAW TIMES – 01.07. 1996 – A 14