What is a cognizable offence?

Question 25 – Draft-Bills-Reports – Inspection, Search, Seizure and Arrest – FAQ on GST dated 21.9.2016 based on Draft Model GST – Question 25 – Q 25. What is a cognizable offence? Ans. Generally, co

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What are the broad guidelines for arrest followed in CBEC?

Question 24 – Draft-Bills-Reports – Inspection, Search, Seizure and Arrest – FAQ on GST dated 21.9.2016 based on Draft Model GST – Question 24 – Q 24. What are the broad guidelines for arrest followed in CBEC? Ans. Decision to arrest needs to be taken on case-tocase basis considering various factors, such as, nature and gravity of offence, quantum of duty evaded or credit wrongfully availed, nature and quality of evidence, possibility of evidences being tampered with or witnesses being influenc

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What are the precautions to be taken during arrest?

Question 23 – Draft-Bills-Reports – Inspection, Search, Seizure and Arrest – FAQ on GST dated 21.9.2016 based on Draft Model GST – Question 23 – Q 23. What are the precautions to be taken during arrest? Ans. The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to arrest and the procedure thereof must be adhered to. It is therefore necessary that all field officers of CGST/SGST be fully familiar with the provisions of the Code of Criminal Procedure, 1973. One important provision to be taken note of is section 57 of Cr.P.C., 1973 which provides that a person arrested without warrant shall not be detained for a longer period than, under the circumstances of the case, is reasonable but this shall not exceed twenty four h

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ion and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. ii. The police officer carrying out the arrest shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest. iii. A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock up, shall be entitled to have one friend or relative or other person known

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xt friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. vi. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The Inspection Memo must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. vii. The arrestee should be subjected to medical examination by the trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Servic

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What are the safeguards provided under MGL for a person who is placed under arrest?

Question 22 – Draft-Bills-Reports – Inspection, Search, Seizure and Arrest – FAQ on GST dated 21.9.2016 based on Draft Model GST – Question 22 – Q 22. What are the safeguards provided under MGL for a person who is placed under arrest? Ans. There are certain safeguards provided under section 62 for a person who is placed under arrest. These are: i. If a person is arrested for a cognizable offence, he must be informed in writing of the grounds of arrest and he must be produced before a magistrate

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When can the proper officer authorize ‘arrest’ of any person under MGL?

Question 21 – Draft-Bills-Reports – Inspection, Search, Seizure and Arrest – FAQ on GST dated 21.9.2016 based on Draft Model GST – Question 21 – Q 21. When can the proper officer authorize arrest of any person under MGL? Ans. The Commissioner of CGST/SGST can authorize a CGST/SGST officer to arrest a person if he has reasons to believe that the person has committed an offence attracting a punishment prescribed under section 73 (1)(i), 73 (1)(ii) and 73 (2) of the CGST/SGST Act. This essentially

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What is meant by the term “arrest”?

Question 20 – Draft-Bills-Reports – Inspection, Search, Seizure and Arrest – FAQ on GST dated 21.9.2016 based on Draft Model GST – Question 20 – Q 20. What is meant by the term arrest ? Ans. The term arrest has not been defined in the Model GST Law. However, as per judicial pronouncements, it denotes the taking into custody of a person under some lawful command or authority . In other words a person is said to be arrested when he is taken and restrained of his liberty by power or colour of lawf

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What are the safeguards provided in MGL in respect of Search or Seizure?

Question 18 – Draft-Bills-Reports – Inspection, Search, Seizure and Arrest – FAQ on GST dated 21.9.2016 based on Draft Model GST – Question 18 – Q 18. What are the safeguards provided in MGL in respect of Search or Seizure? Ans. Certain safeguards are provided in section 60 of Model CGST/SGST Law in respect of the power of search or seizure. These are as follows: i. Seized goods or documents should not be retained beyond the period necessary for their examination; ii. Photocopies of the documents can be taken by the person from whose custody documents are seized; iii. For seized goods, if a notice is not issued within sixty days of its seizure, goods shall be returned to the person from whose possession it was seized. This period of sixty

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What is the distinction in law between ‘Seizure’ and ‘Detention’?

Question 17 – Draft-Bills-Reports – Inspection, Search, Seizure and Arrest – FAQ on GST dated 21.9.2016 based on Draft Model GST – Question 17 – Q 17. What is the distinction in law between Seizure and Detention ? Ans. Denial of access to the owner of the property or the person who possesses the property at a particular point of time by a legal order/notice is called detention. Seizure is taking over of actual possession of the goods by the department. Detention order is issued when it is suspe

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Does MGL have any power of detention of goods and conveyances?

Question 16 – Draft-Bills-Reports – Inspection, Search, Seizure and Arrest – FAQ on GST dated 21.9.2016 based on Draft Model GST – Question 16 – Q 16. Does MGL have any power of detention of goods and conveyances? Ans. Yes, under Section 69 of MGL, an officer has power to detain goods along with the conveyance (like a truck or other types of vehicle) transporting the goods. This can be done for such goods which are being transported or are stored in transit in violation of the provisions of MGL

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What is meant by the term ‘Seizure’?

Question 15 – Draft-Bills-Reports – Inspection, Search, Seizure and Arrest – FAQ on GST dated 21.9.2016 based on Draft Model GST – Question 15 – Q 15. What is meant by the term Seizure ? Ans. The term seizure has not been specifically defined in the Model GST Law. In Law Lexicon Dictionary, seizure is defined as the act of taking possession of property by an officer under legal process. It generally implies taking possession forcibly contrary to the wishes of the owner of the property or who ha

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Are there any monetary limits prescribed for compounding of offence

Question 25 – Draft-Bills-Reports – Offences and Penalties, Prosecution and Compounding – FAQ on GST dated 21.9.2016 based on Draft Model GST – Question 25 – Q 25. Are there any monetary limits prescribed for compounding of offence? Ans. Yes. The lower limit for compounding amount is to be the greater of the following amounts: 50% of tax involved, or 10,000. The upper limit for compounding amount is to be greater of the following amounts:- 150% of tax involved or Rs.30,000. – Statutory Provisio

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When is search said to be illegal? Is evidence collected in the course of an illegal search admissible in trial proceedings?

When is search said to be illegal? Is evidence collected in the course of an illegal search admissible in trial proceedings? – Question 14 – Draft-Bills-Reports – Inspection, Search, Seizure and Arrest – FAQ on GST dated 21.9.2016 based on Draft Model GST – Question 14 – Q 14. When is search said to be illegal? Is evidence collected in the course of an illegal search admissible in trial proceedings? Ans. Search without a valid search warrant (i.e. issued by other than a competent authority or wi

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Can a CGST/SGST officer access business premises under any other circumstances?

Question 13 – Draft-Bills-Reports – Inspection, Search, Seizure and Arrest – FAQ on GST dated 21.9.2016 based on Draft Model GST – Question 13 – Q 13. Can a CGST/SGST officer access business premises under any other circumstances? Ans. Yes. Access can also be obtained in terms of Section 64 of MGL. This provision of law is meant to allow an audit party of CGST/SGST or C&AG or a cost accountant or chartered accountant nominated under section 50 of CGST/SGST Act, access to any business premis

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Can offences under MGL be compounded

Question 24 – Draft-Bills-Reports – Offences and Penalties, Prosecution and Compounding – FAQ on GST dated 21.9.2016 based on Draft Model GST – Question 24 – Q 24. Can offences under MGL be compounded? Ans. Yes. As per section 78 of the MGL, any offence, other than the following, may upon payment of the prescribed (compounding) amount be compounded and such compounding is permissible either before or after the institution of prosecution: Offences numbered 1 to 7 of the 12 major offences (outlin

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What are the basic requirements to be observed during Search operations?

Question 12 – Draft-Bills-Reports – Inspection, Search, Seizure and Arrest – FAQ on GST dated 21.9.2016 based on Draft Model GST – Question 12 – Q 12. What are the basic requirements to be observed during Search operations? Ans. The following principles should be observed during Search: No search of premises should be carried out without a valid search warrant issued by the proper officer. There should invariably be a lady officer accompanying the search team to residence. The officers before starting the search should disclose their identity by showing their identity cards to the person in-charge of the premises. The search warrant should be executed before the start of the search by showing the same to the person in-charge of the premise

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f search all the officers and the witnesses should again offer themselves for their personal search. A Panchnama / Mahazar of the proceedings of the search should necessarily be prepared on the spot. A list of all goods, documents recovered and seized/detained should be prepared and annexed to the Panchnama/Mahazar. The Panchnama / Mahazar and the list of goods/ documents seized/detained should invariably be signed by the witnesses, the in-charge/ owner of the premises before whom the search is conducted and also by the officer(s) duly authorized for conducting the search. After the search is over, the search warrant duly executed should be returned in original to the issuing officer with a report regarding the outcome of the search. The na

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Can a company be proceeded against or prosecuted for any offence under the MGL

Question 22 – Draft-Bills-Reports – Offences and Penalties, Prosecution and Compounding – FAQ on GST dated 21.9.2016 based on Draft Model GST – Question 22 – Q 22. Can a company be proceeded against or prosecuted for any offence under the MGL? Ans. Yes. Section 77 of the MGL provides that every person who was in-charge of or responsible to a company for the conduct of its business shall, along-with the company itself, be liable to be proceeded against and punished for an offence committed by th

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What is a culpable state of mind

Question 21 – Draft-Bills-Reports – Offences and Penalties, Prosecution and Compounding – FAQ on GST dated 21.9.2016 based on Draft Model GST – Question 21 – Q 21. What is a culpable state of mind? Ans. While committing an act, a culpable mental state is a state of mind wherein• the act is intentional; the act and its implications are understood and controllable; the person committing the act was not coerced and even overcomes hurdles to the act committed; the person believes or has reason

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What powers can be exercised by an officer during valid search?

Question 10 – Draft-Bills-Reports – Inspection, Search, Seizure and Arrest – FAQ on GST dated 21.9.2016 based on Draft Model GST – Question 10 – Q 10. What powers can be exercised by an officer during valid search? Ans. An officer carrying out a search has the power to search for and seize goods (which are liable to confiscation) and documents, books or things (relevant for any proceedings under MGL) from the premises searched. During search, the officer has the power to break open the door of

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