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Commissioner (AE), Gautam authorisation of search can be
B u d h N a ga r c o n v e y e d granted only by higher rank
through the communication officer (not below rank of
dated 5-3-2021, was only to Joint Commissioner); (ii)
ascertain as to whether search can be authorised
RJT, which was the L2 o n l y o n “ re a s o n to
supplier of M/s. Mridul believe” for existence of
To b i e I n c . , w a s i n condition specified in the
existence. There was no independent application said provisions; (iii) “reasons to believe” has
of mind by the Additional Commissioner, CGST interpreted by Courts has to be on the basis of
Delhi North Commissionerate” to carry out search tangible evidences and opinion on the basis of the
and seizure. same, has to be duly recorded in file before grant
Power of search is draconian power: It has been well of authorisation for search. Further, as per sub-
recognized in the law that the power of the search is section (10) of section 67 of the said Act, the
a serious invasion of the privacy of the citizens provisions of the Code of Criminal Procedure,
therefore it violates the fundamental right of the 1973, relating to search and seizure, shall, so far as
citizens [ITO v. Seth Bros., (1969) 2 SCC 324; Mapsa may be, apply to search and seizure under this
Tapes Pvt. Ltd. v Union of India 2006 (201) E.L.T. 7 section subject to the modification that sub-
(P&H.)]. Thus, the power of search is draconian section (5) of section 165 of the said Code shall
power should be used only in exceptional have effect as if for the word “Magistrate”,
circumstances. The officer only on the basis of wherever it occurs, the word “Commissioner” is
tangible evidence has to form an opinion and that substituted, therefore, this is another safeguard
has to be recorded on the file before the search provided in law.
authorization is granted. Furthermore, the opinion Search under GST only can be authorised for
has to be formed by the proper officer who is limited purposes: If one has to read the section
authorized under the law, and it cannot be a rubber 67(2) carefully, search can be authorized by the
stamp opinion formed by another person/ officer. proper officer, not below the rank of Joint
DGCEI Manual-2004 applies to search under GST: Commissioner has reasons to believe that (i) any
The Ministry of Finance in the aforesaid goods liable to confiscation or (ii) any documents
Instructions No. 01/2020-21. [GST-investigation], or books or things, which in his opinion shall be
dated 02.02.2021 has also stated that “the useful for or relevant to any proceedings under
instructions contained in the Central Excise this Act, are secreted in any place. Therefore,
Intelligence and Investigation Manual (2004), there are no other reasons for which search can be
which hold good even in GST regime, are hereby, authorized and carried out. Whereas, sometimes,
re-iterated for compliance by DGGI/ file search is being carried out beyond the reasons
formations.” specified in the aforesaid provisions, which are
absolutely illegal and without authority of law.
Safeguard provided for search and seizure to avoid Sometime, even the authorisation is granted for
arbitrary exercise of power: The power of search
the inspection under section 67(1) of the Act, but
and seizure under GST contained in section 67(2) the officer who is authorised to carry out the
of the CGST Act, 2017 (similar provisions contained inspection, also does the seizure of goods or
in State GST law). The section does not confer any records, which is beyond the authority of law, as
arbitrary authority upon the Revenue Officers. The
law does not permit to carry out seizure, while
provisions contain so many safeguards to avoid the
only authority of carry out the inspection.
abuse of power by officers. Such as (i)
21 Live for each second without hesitation.
