Offences under section 9:
The provisions of section 9 of the Act enumerate what will constitute an offence under the Act. The following type of acts will constitute an offence:
(i) contravening any of the provisions of Section 8, dealing with restriction on possession of certain goods specified in the Second Schedule [Section 9(1)(a)]
(ii) contravening any of the provisions of Section 37(2)(iii) which relates to transit of excisable goods to any part of India and Section 37(2)(xxvii) relates to registration of persons [Section 9(1)(a)]
(iii) evading payment of duty [Section 9(1)(b)]
(iv) removing or concerning himself in removing any excisable goods in contravention of the Act or Rules made thereunder [Section 9(1)(bb)]
(v) acquiring possession of or otherwise dealing (includes possession, transporting, storing, keeping, selling purchasing etc.) in excisable goods which he knows or has reason to believe are known to be liable for confiscation [Section 9(1)(bbb)]
(vi) contravening any of the provisions of this Act or the rules in relation to credit of any duty allowed to be utilized towards payment of excise duty on final products [Section 9(1)(bbbb)]
(vii) failing to supply information which is required under the Act or supplying false information [Section 9(1)(c)]
(viii) attempting or abetting the commission of any of the acts mentioned in clauses (a) and (b) of this section [Section 9(1)(d)]
Punishment for the offences: Section 9 provides the following prosecution provisions for the offences mentioned above:-
- In the case of an offence relating to any excisable goods, the duty leviable thereon under this Act exceeds ` 50 lakh, with imprisonment for a term which may extend to seven years and with fine.
However, in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court such imprisonment shall not be for a term of less than six months.
- In any other case, with imprisonment for a term which may extend to three years or with fine or with both.
If any person is convicted of an offence more than once, for the second and subsequent offences, he shall be liable for imprisonment for a term which may extend to seven years and with fine. The Court trying the offence is given powers to restrict the term of imprisonment for not less than six months but while doing so must record the reasons which shall be special and adequate [Section 9(2)].
Section 9(3) lists out following matters which would not constitute to be special and adequate reasons for the purpose sub-section (2) and (3):
(i) the fact that the accused has been convicted for the first time for an offence under this Act;
(ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods in relation to such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence;
(iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party in the commission of the offence;
(iv) the age of the accused.
Note:
(a) It is provided that where an offence has been committed by a company (defined as any body corporate and includes a firm or other association of individuals), every person, who at the time of commission of an offence was in charge of, or was responsible for the conduct of the business of the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Director in relation to a firm means a partner in the firm.
(b) The law also provides that in any prosecution for an offence, the Court sh all assume existence of culpable mental state, but the accused can deny the existence of such a state.
For this purpose “culpable mental state” includes intention, motive, knowledge of a fact, and belief in, or reason to believe, a fact.
(c) Where any person is convicted by the Court for any offence under this Act and if the Court deems it appropriate, may publish the name and place of business or residence of such convicted person along with such other particulars as deemed fit in such newspapers or in such manner as the Court may direct. The expenses of such publication shall be recoverable form the convicted person as if it were a fine imposed by the Court.