Sunday, October 2, 2016

Çognizable offence in GST

Model GST law (MGL) envisages enforcement thereof both by the Central Excise officers as well as by the officers of the State VAT department.  One of the provisions of MGL is pertaining to arrest – power of which the state government officers never had and the Central Excise officers were reluctant to use in order to avoid the ‘headaches’ following the arrest.

MGL provides for arresting[1] a person who commits an offence punishable under section 73(1)(i), (ii) or 73(2).  Every person who is authorised to arrest should produce the arrested person before a Magistrate within 24 hours, if the offence is a ‘Cognizable offence’.  In case the offence is non cognizable, the Deputy Commissioner or the Assistant Commissioner of CGST/SGST have the powers to release him on bail subject to Section 436 of CrPC.

Now, what is a ‘Cognizable offence’?  MGL has no answer – Cognizable offence is not defined here. Therefore the Criminal Procedure Code, 1973 is referred to, which defines a ‘Cognizable Offence’ as
Cognizable offence means an offence for which and ‘cognizable case’ means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant[2]

However, Section 73(3) and (4) of MGL makes a distinction between cognizable and non-cognizable offences.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Act, except the offences referred to in sub-section (4) shall be non-cognizable and bailable.”
(4) The offences relating to taxable goods and/or services where the amount of tax evaded exceeds two hundred and fifty lakh rupees shall be cognizable and non-bailable”.

Now, let us examine a situation if this act is passed as such, and if an overzealous or a hyperactive police officer arrests a person for evading GST of more than Rs. 2.5 Crores.  Since it is a cognizable offence as per Section 73(4), the police officer is well within his powers to arrest the offender and one cannot find fault with him. But however, if the arrested person is produced before the court, the court would not be able take cognizance of the offence![3]  The said police office officer can neither investigate or adjudicate a case under the Act, but can arrest a person!   Still the law doesn’t require him to produce the arrested person before any adjudicating authority of GST.

Therefore, ideally, it is felt that “Cognizable offence” for the purpose of this Act should be defined in an unambiguous manner.  May be this fact has to be taken into consideration seriously by the law makers, before the law is finalized.

 ______________________________________________________
Tail piece:
Section 74 discusses the cognizance of offences
No Court shall take cognizance of any offence punishable except with the previous sanction of the designated authority, and no Court inferior to that of a Magistrate of the First Class, shall try any such offence”.

It is felt that for better clarity, words “under this act” should have followed the words “any offence punishable” in Section 74, so that it becomes meaningful.





[1] Section 62
[2] Section 2(c) of CrPC
[3] Section 74

Tuesday, September 13, 2016

Cloud computing and Forensic Investigation

What is cloud computing? According to Oxford Dictionary, Cloud Computing means the practice of using a network of remote servers hosted on the Internet to store, manage, and process data, rather than a local server or a personal computer.
The definition of the term ‘Cloud Computing’ given by the US National Institute of Standards and Technology (NIST)  is as follows:
“Cloud computing is a model for enabling ubiquitous, convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction[1]”.
The above definition of ‘Cloud computing’ has been widely accepted in India[2].
However, to put it in simple terms, Cloud computing means storing and accessing data and applications on the Internet rather than one’s own computer system. Cloud in the term of Cloud Computing refers to set of hardware, networks, storage, services, and interfaces that combine to deliver aspects of computing as a service[3].   The initiative of the Ministry of Electronics & Information Technology, Government of India in this direction is named as ‘Meghraj’[4].  According to Worldwide Quarterly Cloud IT Infrastructure Tracker, April, 21st 2015 Cloud computing accounted for about 33% of the total IT expenditure in 2015 across the world and the cloud IT infrastructure spending is expected to be 45% of total IT infrastructure spending[5].
At a time when the corporate are going through a time of recession and are looking for ways and means to reduce costs, the concept of ‘Cloud Computing’ is a boon for them, which helps in enhancing the capacity without actually investing anything extra in infrastructure, training, purchase of new software etc. Of late, this concept has grown by leaps and bounds and is presently one of the important segment of the IT industry.
For those who provide the ‘Cloud computing’ services, called ‘Cloud Service Providers’ or CSP,  it is not an easy task to co-locate the virtual machines from multiple organizations in the same physical server and calls for extreme caution while handling.  Major CSPs such as Microsoft, Google, Amazon, Salesforce.com, GoGrid etc. ) are leveraging virtualization technologies combined with self-service capabilities for computing resources via the Internet[6].
Though most of the corporates are looking upto ‘Cloud computing’ in order to expand their horizons, what worries them is the security issues.  The risk of the confidential data being available in the public domain is something they dread of and there is no way that they can afford to compromise on the security of their applications and data.
Well, this is exactly the point the writer is looking at.  The corporate needn’t worry too much as the CSPs invest a lot of amounts in ensuring foolproof security to their data by devising various methods.  But on the part of the laws enforcing agencies of the government, it is a real tough task to gather intelligence on the possible financial frauds and successfully expose the fraud before the competent courts along with adequate material evidences to prove the case, lest all the efforts would be in vain.  The six aspects that worry the corporate - i.e., availability, confidentiality, data integrity, control, audit, cause a lot of concerns to these agencies too, albeit for a different reason.
As we know, the law enforcing agencies and their investigating officers in India still depend a lot on human intelligence and human caliber rather than the technological aids, compared to the developed countries. But at the same time, our business, technology and the corporate sector are almost at par with any developed country, if not more efficient.  This technological lag often creates a barrier at the field level investigation.  Recently, an officer of a central agency who was in charge of investigating a multi-crore scam reached the corporate office of a company named in the FIR and came across a certain material evidences in the system.  Excited with the discovery of the clinching evidence, the officer ordered the concerned person to immediately give ‘print’ of the entire data, in the same style as he would seize the entire register for the evidence available in some half page of the register.   When the executive informed that it would take at least two days to print the entire data, the confused officer had to consult his senior in the office to go back, without actually ‘seizing’ the material evidence.
In a case of financial fraud few years ago by an IT giant in India in order to evade huge tax amount investigated by one of the premier agencies, the investigators found it hard to collect the data from the company, as the data were stored in a server located in a different country.  It was only the sheer dynamism, command, presence of mind and perseverance on the part of the investigators that resulted in collection of the required data as well as the documents required for the purpose of investigation.  If this was the case before the introduction of ‘cloud computing’ just imagine the fate of the investigators in the present scenario.
The need of the hour is to strengthen the Forensic Investigation skills of the investigator along with adequate and updated knowledge about the compliance requirements and the laws governing the said technology.  Since the ‘cloud’ can cross multiple countries, the privacy laws applicable in the respective countries have to be taken into consideration.  Further, the details of the agreements of the CSPs and their clients have to be studied in order to find about the availability or the destruction of older data. 
Now, what is Forensic Investigation? The word forensic comes from the Latin term forensis meaning of or before the forum[7].  In the modern use, the term Forensic Investigation can be broadly understood as something related to authentic collection of evidence which would be accepted before a court of law.  And when it comes to the frauds and investigations related to computers and internet, the term Çyber Forensic' is used.  Further, digital forensics is the application of proven scientific methods and techniques in order to recover data from electronic / digital media[8].
Therefore, unless the investigators in general and investigators of financial fraud in particular should know thoroughly well about the techniques to collect evidence in the ‘cloud’ atmosphere.  A conventional investigator need not know how to do post mortem, but he should definitely know how it would help him solve the case. Similarly, a financial fraud investigator need not be an IT expert, but he should be trained to understand what he wants and how to collect it effectively.

(With the given facilities for training in the field in India, an ordinary investigator trained on basics of cyber forensics would be on cloud nine and would not know about cloud computing!!)





[1] National Institute of Standards and Technology (NIST), US department of Commerce Special Publication 800-145
[2] Cloud Computing & IP Challenges  by Himanshu Sharma and Martand Nemana, Singh & Associates published in www.mondaq.com on 6 September 2016
[3] http://www.erewise.com
[4] http://meity.gov.in/content/gi-cloud-initiative-meghraj
[5] Consultation Paper on Cloud Computing 10th June, 2016 by Telecom Regulatory Authority of India, http://www.networkworld.com/article/2175333/cloudUcomputing/idcUUcloudUwillUbeUU107bUindustryUbyU 2017.html
[6] Cloud computing security issues and challenges, Krešimir Popović, Željko Hocenski, Faculty of Electrical Engineering, Institute of Automation and Process Computing, Croatia

[7] https://en.wikipedia.org/wiki/Forensic_science
[8] https://en.wikipedia.org/wiki/Forensic_science

Thursday, August 21, 2014

Central Excise & Police - Is a comparison of functions warranted?

Recently, i.e. on 05.08.2014, there was an article in Taxindiaonline.com about the adjudication process in the Central Excise Department. (http://www.taxindiaonline.com/RC2/inside2.php3?filename=bnews_detail.php3&newsid=21173) 

TIOL-DDT 2410
05.08.2014 
Tuesday
Policeman, Prosecutor and Judge - all rolled into one 
“THE story of a huge litigation generally starts with a Show Cause Notice in Customs/Excise/Service Tax. Usually the Show Cause Notice is the result of an audit or investigation by the preventive unit. The Audit objection or the preventive intelligence is often approved by the Commissioner and the Commissioner himself issues the Show Cause Notice under his signature. And then he sits in judgement over the initial findings approved by him and the notice issued by him - as the adjudicator. So, un-understandably by any normal citizen, the Commissioner is the policeman, prosecutor and the judge”.
(Pl visit www.taxindiaoline.com for full text of the article)
_______________________________________________________________


            It is highly improper to compare the functions and powers of a Revenue officer with that of a Police Officer and a Judicial Officer.  A Police Officer, based on the First Information Report (FIR) registered, investigates the case with[1] or without[2] the permission of the Magistrate following the procedure laid down in Chapter XII of the Criminal Procedure Core, 1973 and submits his Final Report under the provisions of Section 173 of CrPC.  Further, it is for the judicial officer to examine the evidences threadbare and to satisfy himself that the case is proved beyond reasonable doubt, before passing the appropriate Adjudication Order based on the merits of the case and provisions of law.

            While any investigation by a Police Officer begins invariably with the registration of a First Information Report (FIR), a copy of which is duly submitted the Jurisdictional Magistrate[3], there is no concept of FIR in the cases registered under the Customs Act or Central Excise Act.  While the Police Officer is not empowered under the CrPC to summon any person (u/s 160), or to search any premises (u/s 165) without registration of an FIR, a Revenue Officer starts his investigation, summons a person[4] or searches a premises[5] merely on the reasonable belief that there is an offence under the relevant act or there are certain goods which are liable to confiscation.  While the Police Officer  is barred[6] from obtaining the signature of the witness on the statement recorded by him, the Revenue Officer not only makes the witness sign the statement, but it becomes a piece of evidence under any judicial or quasi judicial process[7].

            The functions of adjudication envisaged by the Customs act and the Central Excise Act are quasi judicial in nature. Adjudication Orders are generally passed and issued by the officers of appropriate level in the departments under CBEC under the provisions of Customs Act or the Central Excise Act, depending upon the issue in hand.  These Acts are Special Acts framed for the levy and collection of duty.  Primarily the adjudication powers vested with the departmental officers are meant to ensure that there is no loss of revenue by way of an alleged contravention of the provisions of the aforesaid act/s by any person/s and to discourage any such offences by imposing sufficient amount of penalties to have a deterrent effect, as provided for in the statute.  The investigation under Revenue Acts is more of a fact finding exercise for the purpose of adjudicating the case in hand, unlike an investigation of a criminal case by a Police Officer. Nevertheless, whenever a criminality in the offence is observed by the Adjudicating Authority during the process of his adjudication, a private complaint u/s 200 of CrPC is promptly filed before a competent Court. The prosecution proceedings are totally independent of Adjudication proceedings.

Show Cause Notice
            The term ‘SHOW-CAUSE-NOTICE’ probably frightens a common man and is generally the beginning of “huge litigation”. But in fact, the issuance of SCN is nothing but a gesture of following the principles of natural justice on the part of the Adjudicating Authority.  By issuing an SCN, the assessee or the person whose goods are proposed to be confiscated or against whom imposition of a penalty is proposed is given an opportunity to submit his version and evidences, if any, to bolster his arguments.  ‘The principles of natural justice which have got to be observed by all judicial and quasi judicial bodies are that a party should not be condemned unheard, that he should know what the charge against him is, that he should be heard in his defence, that he should be given an opportunity to lead evidence, and he should also be given an opportunity to examine the materials which are before the adjudicating authority for his defence [8].

Section 33 of Central Excise Act reads as follows
Power of adjudication.—Where under this Act or by rules made thereunder anything is liable to confiscation or any person is liable to a penalty, such confiscation or penalty may be adjudged—
(a)        ………
(b)        ………

Section 122 of Customs Act reads as follows
Adjudication of confiscations and penalties. – In every case under this Chapter in which anything is liable to confiscation or any person is liable to a penalty, such confiscation or penalty may be adjudged, -
(a)   ……………        
(b)  ……………….
(c)  …………….

Apparently, an Order of Adjudication is passed by the Competent Authority whenever any goods are liable to confiscation or a person is liable to penalty.

            While Section 124 of the Customs Act makes it mandatory for an SCN to be issued to the concerned person before passing an order of confiscation or imposing penalty, the Central Excise Act is silent on this[9].  However, as a matter of practice and with a view to following the principles of natural justice, the Department has been religiously issuing SCNs prior to every Order of adjudication.  Therefore, in a way, the issuance of SCN can be said to be a part and parcel of the adjudication proceedings.

Prosecution
            As mentioned above, during the adjudication proceedings, if the concerned officer is satisfied about the criminality in the offence, a complaint is filed before a court of competent jurisdiction and the case is followed up in the Court to bring it to a logical conclusion. When it comes to prosecution of Revenue cases, it may be observed that the statues have stipulated that the Court shall presume the culpable mental state on the part of the accused person[10].  This is quite a deviation from the general principle followed in the regular cases filed before the Courts by the Police Officers, wherein it is the responsibility of the prosecution to prove the ‘mens-rea’ as the same is an essential ingredient of any offence.

            It may also be appreciated that the Hon’ble Supreme Court has held that even after imposition of penalty by an adjudicating authority, a person can be prosecuted and punished[11].

Conclusion
            The Commissioner of Central Excise & Customs is an officer entrusted basically with the work of collecting Revenue for the Government as provided for under the relevant acts.  Quasi-judicial powers have been given to him in order to effectively check revenue leakage and to punish the offenders to create a deterrent effect.  If at all this Revenue Collector has to be compared with anybody in view of the powers conferred on him under the statutes, it is felt that best comparison would be with a Magistrate, who adjudicates the cases based on the evidences placed before him. The Audit wing/ Preventive wing etc. of a Commissioner are nothing but his own hands to effectively discharge his duties.  The Audit wing goes to the assessee’s premises to verify the documents and in case of any non-payment/short payment of duty, the matter is brought to the Commissioner of Central Excise, who demands the duty and imposes the penalty for violation of statute, after following due process of giving the opportunity of explanation (by way of SCN) and of being heard (by way Personal Hearing) to the assessee.  Similarly, whenever the Preventive Wing happens to notice any revenue leakage, the same is brought to the notice of Commissioner, who orders for confiscation of goods/ imposing penalty, as the case may be, along with recovery of duty, after following the due process as above.





[1] Section 155 of CrPC, Non Cognizable Offences
[2] Section 156 of CrPC, Cognizable Offences
[3] Section 157 of CrPC
[4] Section 14 of Central Excise Act, Section 108 0f Customs Act
[5] Section 12F of Central Excise Act, Section 105 of Customs Act
[6] Section 162 of CrPC
[7] Section 108(4) of Customs Act
[8] Central Excise Adjudication Manual, Chapter III, Show Cause Notice.
[9] Section 11A of Central Excise Act stipulates for Notice to Show Cause in case of non-payment/short payment/ erroneous refund; but not for confiscation or imposing penalty.
[10] Section 9C of Central Excise Act, Section 138A of Customs Act.
[11] Director of Enforcement v. MCT M Corporation (P) Ltd., 1996, RLT, p 365 (SC).

Wednesday, September 1, 2010

Tuesday, August 31, 2010

Assignment of Copyright

Section 18 of the Indian Copyright Act deals with the Assignment of Copyright.
  1. The owner of the Copyright in an existing work or a prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright or any part thereof, provided that in the case of assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence.
  2. Whereas the assignee of a copyright becomes entitled to any right comprised in the copyright, the assignee, as respects the rights to assigned, and the assignor as respects the rights not assigned, shall be treated for the purposes of this Act as the owner of copyright and the provisions of this Act shall have effect accordingly.
  3. In this section, the expression "assignee" as respects the assignment of the copyright in any future work includes the legal representative of the assignee, if the assignee dies before the work comes into existence.

Patent

Patent is an exclusive right granted for an invention which is a product or a process that provides a new way of doing something, or offers a new technical solution to a problem. The patent protects the rights of the owner of the invention generally for a period of twenty years. An invention which is patented cannot be commercially made, used, distributed or sold without the patent owner's consent. During the period of protection, the patent owner, at his own discretion, sell his right to the invention, or give permission to another person to use the rights on mutually agreed terms. On expiry of the patent, the invention becomes available to others for commercial exploitation.

Monday, August 30, 2010

Copy Right Law

The object of copyright law is to encourage authors, composers, artists and designers to create original works by rewarding them with an exclusive right for a limited period. Such exclusive rights are permitted for literary, dramatic, musical, artistic, cinematograph film and sound recordings. The law aims at preventing anyone from reproducing or exploiting another person's work without authorisation.