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Opinion shall be formed by the proper officer for word “secreted” used in search proceedings under
which seizure to take place: As per the provisions the Customs Act, has held that “13…In our opinion,
of section 67(2) of the Act, seizure can be carried the word `secreted’ must be understood in the
out for “such goods, documents or books or context in which the word is used in the section. In
things”. Therefore, “such goods” indicate that the that context, it means `documents which are kept
only “goods liable to confiscation” for which not in the normal or usual place with a view to
search was authorized. Similarly, “such conceal them’ or it may even mean `documents or
documents or books or things” indicate those things which are likely to be secreted’. In other
documents or books or things, which in the words, documents or things which a person is likely
opinion of the proper officer shall be useful for or to keep out of the way or to put in a place where the
relevant to any proceedings under this Act, are officer of law cannot find it. It is in this sense that
secreted in any place. Therefore, as per strict the word `secreted’ must be understood as it is
interpretation of the provisions of the Act, only used in Section 105 of the Customs Act.”
the proper officer has to form an opinion about For seizing of items, opinion to be formed by the
“such goods, documents or books or things” and Proper Officer and not by the authorized officer:
not the officer to whom authority has been given Whereas as per Rule 139(2) of the CGST Rules,
by the officer to carry out the search and seizure. 2017, “Where any goods, documents, books or
Very often, GST officers during search take away things are liable for seizure under sub-section (2) of
the cash found in the premises which is searched. Section 67, the proper officer or an authorised
The question arises the legitimacy of the action
officer shall make an order of seizure in Form GST
taken by the GST officer for taking away the cash INS-02.” The question arose, while making order of
during the search. This question assumes seizure, in Form GST INS-02, who has to formed
significance in view of the recent order dated opinion regarding ‘reasons to believe’ is to be
19.01.2023 passed by Delhi High Court in case of
recorded- why such goods are liable for
Arvind Goyal CA v. Union of India, 2023 SCC OnLine confiscation and/ or why such ‘documents or books
Del 765 by terming the cash taken illegal and or things’ shall be useful for or relevant to any
without authority of law by the Delhi GST officer proceedings under this Act, are secreted in any
and directed to refund the same with accrued
place.
interest.
As per said Form GST INS-02, even the authorized
Meaning of words and expression ‘secreted’: As
officer can form such an opinion, while doing
per provisions of section 67(2) of the CGST Act, seizure. Whereas, as discussed herein above, as
2017, search can be carried out once the proper per provisions of section 67(2) of the Act, such
officer has reasons to opinion has to be formed by
b e l i e v e t h a t “ a n y “the proper officer”, who is
documents or books or competent to authorize such
things which in his opinion search and seizure and not by
shall be useful for or the officer who is authorized
relevant to any proceedings by the proper officer to carry
under this Act are secreted out search and seizure.
in any place”. The Supreme Therefore, once there is
Court in Durga Prasad, Etc. v.
conflict between the parent
H . R . G o m e s , law and the delegated legislation, then it is settled
Superintendent (Prevention) 1983 (13) E.L.T. 1501 law that the delegated law has to give way to the
(S.C.): (1966) 2 SCR 991 while dealing with the parent law and parent law will prevail over the
Life is like riding a bicycle. To keep your balance, you must keep moving. 22
