Ch 36 - Provisions Relating to Evidence | GST Saral by CA Dhruv Aggarwal PDF Download

 Page 1


CA DHRUV AGRAWAL – National Chairman Taxation Committee-All India Confederation of Small & Micro Industries Association  
 
 
 
 
 
 
 
 
 
 
 
 
CHAPTER 36 - Provi si ons rel ati ng to evi dence 
 
 
 
 
 
CHAPTER 36 
 
Provisions relating to evidence 
 
GST Law makes specific provisions relating to evidence in various cases. 
 
36.1 Relevancy  of statements under certain circumstances 
 
Section 136 of CGST Act provides as follows - 
 
A statement made and signed by a person on appearance in response to any summons issued under section 70 
during the course of any inquiry or proceedings under this Act shall be relevant, for the purpose of provi ng, in 
any prosecution for an offence under this Act, the truth of the facts which it contains — 
 
(a)   when the person who made the statement is dead or cannot be found, or is incapable of giving 
evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained 
without an amount of delay or expense  which,  under the circumstances  of the case, the Court 
considers unreasonable; or 
(b)   when the person who made the statement is examined as a witness in the case before the Court and 
the Court is of the opinion that, having regard to the circumstances of the case, the statement should 
be admitted in evidence in the interests of justice. 
Interestingly, this section states that the statement is relevant only in prosecution of offence. Thus, the statement 
is not a relevant evidence before Appe late Authority and Appe late Tribunal also. 
Validity of similar provision in excise and customs [section 9D of Central Excise Act and section 138B of 
Customs  Act) has been upheld  in J&K  Cigarettes  v. CCE  (2009)  242  ELT 189  (Del HC  DB) [The 
cha lenge was provision for admitting evidence even without cross examination of witness]. 
In Takshila Spinners v. CCE 2001(131) ELT 568 (CEGAT), it was held that statements of witness who are 
not cross examined cannot be relied upon and demand on basis of such statement without any corroboration is 
not sustainable. - same view in Nu-Trend Business Machines v. CCE 2002(141) ELT 119 (CEGAT) * 
Metro (India) Wood Crafts v. CCE (2016) 333 ELT 418 (CESTAT) * Jindal Drugs v. UOI (2016) 340 
ELT 67 (P&H HC DB) * CCE v. Kuber Tobacco (2016) 338 ELT 113 (CESTAT) * Alliance Alloys v. 
CCE  (2016)  338  ELT  749  (CESTAT)  *  Ambika International   v.  UOI  (2016)  56  GST  499  =  71 
Latest Case53 (P&H HC DB). 
Statement  not  signed  by officer  who took the statement  has  no value - In State v. Yakub Ahmed 
A2000(125) ELT 113 (Bom), it was held that statement not recorded by gazetted officer of customs is not 
admissible as evidence - fo lowed in D M Gears v. CCE 2002(141) ELT 514 (CEGAT), where it was held 
that if a statement is not signed by an empowered officer nor disclosing identity of officer who recorded the 
statement, has no evidentiary value - fo lowed in Satpushp Steels v. CCE 2006 (196) ELT 105 (CESTAT). 
Collecting cheques by force during search - Often departmental authorities co lect cheques from assessee 
by force by threatening at time of preventive checks. In Abhishek Fashions v. UOI (2008) 15 STT 291 (Guj 
Page 2


CA DHRUV AGRAWAL – National Chairman Taxation Committee-All India Confederation of Small & Micro Industries Association  
 
 
 
 
 
 
 
 
 
 
 
 
CHAPTER 36 - Provi si ons rel ati ng to evi dence 
 
 
 
 
 
CHAPTER 36 
 
Provisions relating to evidence 
 
GST Law makes specific provisions relating to evidence in various cases. 
 
36.1 Relevancy  of statements under certain circumstances 
 
Section 136 of CGST Act provides as follows - 
 
A statement made and signed by a person on appearance in response to any summons issued under section 70 
during the course of any inquiry or proceedings under this Act shall be relevant, for the purpose of provi ng, in 
any prosecution for an offence under this Act, the truth of the facts which it contains — 
 
(a)   when the person who made the statement is dead or cannot be found, or is incapable of giving 
evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained 
without an amount of delay or expense  which,  under the circumstances  of the case, the Court 
considers unreasonable; or 
(b)   when the person who made the statement is examined as a witness in the case before the Court and 
the Court is of the opinion that, having regard to the circumstances of the case, the statement should 
be admitted in evidence in the interests of justice. 
Interestingly, this section states that the statement is relevant only in prosecution of offence. Thus, the statement 
is not a relevant evidence before Appe late Authority and Appe late Tribunal also. 
Validity of similar provision in excise and customs [section 9D of Central Excise Act and section 138B of 
Customs  Act) has been upheld  in J&K  Cigarettes  v. CCE  (2009)  242  ELT 189  (Del HC  DB) [The 
cha lenge was provision for admitting evidence even without cross examination of witness]. 
In Takshila Spinners v. CCE 2001(131) ELT 568 (CEGAT), it was held that statements of witness who are 
not cross examined cannot be relied upon and demand on basis of such statement without any corroboration is 
not sustainable. - same view in Nu-Trend Business Machines v. CCE 2002(141) ELT 119 (CEGAT) * 
Metro (India) Wood Crafts v. CCE (2016) 333 ELT 418 (CESTAT) * Jindal Drugs v. UOI (2016) 340 
ELT 67 (P&H HC DB) * CCE v. Kuber Tobacco (2016) 338 ELT 113 (CESTAT) * Alliance Alloys v. 
CCE  (2016)  338  ELT  749  (CESTAT)  *  Ambika International   v.  UOI  (2016)  56  GST  499  =  71 
Latest Case53 (P&H HC DB). 
Statement  not  signed  by officer  who took the statement  has  no value - In State v. Yakub Ahmed 
A2000(125) ELT 113 (Bom), it was held that statement not recorded by gazetted officer of customs is not 
admissible as evidence - fo lowed in D M Gears v. CCE 2002(141) ELT 514 (CEGAT), where it was held 
that if a statement is not signed by an empowered officer nor disclosing identity of officer who recorded the 
statement, has no evidentiary value - fo lowed in Satpushp Steels v. CCE 2006 (196) ELT 105 (CESTAT). 
Collecting cheques by force during search - Often departmental authorities co lect cheques from assessee 
by force by threatening at time of preventive checks. In Abhishek Fashions v. UOI (2008) 15 STT 291 (Guj 
CA DHRUV AGRAWAL – National Chairman Taxation Committee-All India Confederation of Small & Micro Industries Association  
 
 
HC DB), it was held that there is no provision to co lect such cheques and department was asked to return the 
cheques forthwith. 
36.1-1 Person is not 'accused' when he is giving statement 
 
As per Article 20(3) of Constitution "No person accused of an offence shall be compe led to be a witness 
against himself". It was contended that in view of this, statement made before excise/customs authorities cannot 
be admitted as evidence. However, it was held that at the time of enquiry, the person is not 'accused of an 
offence' at that stage. Hence, his statements are not protected under Article 20(3) and it is admissible as 
evidence - Romesh Chandra  Mehta v. State of West Bengal - AIR 1970 SC 940 = 1969 (2) SCR 461 = 
110 ELT 324 (SC 5 member Constitution bench) - affirmed in Poolpandi  v. Superintendent,  C Ex. 62 
Taxman 447 = AIR 1992 SC 1795 = 60 ELT 24 (SC) = 75 Comp. Cas. 504 = (1992) 3 SCC 259 = 
1992(3) SCR 247 = 1992 AIR SCW 2012 (3 member bench) * K L Pavunny v. ACCE (1997) 3 SCC 
721 = 18 RLT 641 = 90 ELT 241 (SC 3 member bench) * Bhana Khalpa Bhai Patel v. ACC 96 ELT 211 
(SC) = AIR 1998 SC 1487 * ACCE v. Duncan Agro 2000 AIR SCW 3150 = 2000(7) SCC 53 = AIR 
2000 SC 2901 = 120 ELT 280 (SC) * Gulam Hussain Shaikh v. S Reynolds, Superintendent of Customs 
(2002) 1 SCC 155 = 134 ELT 3 = 2001 Latest Case132 (SC) * UOI v. Padam  Narain  Aggarwal 
(2008) 231 ELT 397 (SC) * IVRCL Infrastructure  v. CC (2015) 51 GST 335 = 57 Latest Case409 
(SC). 
However, once FIR (First Information Report) is lodged, the person becomes a 'person accused' and hence 
the constitutional protection is available  to a subsequent  statement,  even if the person is not specifica ly 
mentioned in FIR. However, in this case, the Court held that though an accused person is not required to be 
witness against himself, this does not mean that he need not give information regarding matters which do not 
tend to incriminate him. - . - Ramanlal Bhogilal Shah v. D K Guha - 1973 (1) SCC 696 = AIR 1973 SC 
1196. 
 
Rea ly, the issue is not free from doubt. In Nandini Satpathy v. P L Dani (1978) 2 SCC 424, it was held that 
protection under Article 20(3) extends even at investigation stage - quoted with approval in Selvi v. State of 
Karnataka  (2010) 7 SCC 263 (SC 3 member bench). 
36.1-2 Tax officer is not a police officer 
 
A statement made before police officer cannot be admitted as an evidence. However, tax officer is not 'police 
officer'  though  he  is  invested  with  some  powers  of  a  police  officer.  Hence,  statement  made  before 
customs/excise officer can be admitted as evidence - Illias v. CC - 1969 2 SCR 613 = 1983 (13) ELT 1427 
= AIR 1970 SC 1065 - (SC 5 member Constitution Bench) * State of Punjab v. Barkat Ram - AIR 1962 
SC 276.* Romesh Chandra  Mehta v. State of West Bengal - AIR 1970 SC 940 = 1969 (2) SCR 461 = 
110 ELT 324 (SC 5 member Constitution bench) * Surjeet Singh Chhabra v. UOI 1997 AIR SCW 2507 = 
AIR 1997 SC 2560 = 17 RLT 331 = 89 ELT 646 (SC) * Badku Joti Savant v. State of Mysore - 1966 (3) 
SCR 698 = AIR 1966 SC 1746 = 2 ELT (J 323) (SC 5 member bench) * Jethmal v. UOI 110 ELT 379 
(SC) * Hazari Singh v. UOI 110 ELT 406 (SC). 
In Percy Rustomji Basta v. State of Maharashtra AIR 1971 SC 1087 = 13 ELT 1443 = 1971(1) SCC 
847, it was held that excise officers are not police officers and the person making a statement is not 'accused' 
since the statement is recorded before issue of show cause notice etc. and hence there is no bar in using the 
statement as evidence in excise adjudication and other legal proceedings - same view in K.T. Advani v. The 
State - 1987 (3) ELT 390 * Surjeet Singh Chhabra v. UOI 1997 AIR SCW 2507 = AIR 1997 SC 2560 = 
17 RLT 331 = 89 ELT 646 (SC)]. In Raj Kumar Karwal v. UOI (1990) 2 SCC 409 = AIR 1991 SC 45 = 
48 ELT 496 (SC) also, it was held that excise officer cannot be termed as police officer unless he has power 
Page 3


CA DHRUV AGRAWAL – National Chairman Taxation Committee-All India Confederation of Small & Micro Industries Association  
 
 
 
 
 
 
 
 
 
 
 
 
CHAPTER 36 - Provi si ons rel ati ng to evi dence 
 
 
 
 
 
CHAPTER 36 
 
Provisions relating to evidence 
 
GST Law makes specific provisions relating to evidence in various cases. 
 
36.1 Relevancy  of statements under certain circumstances 
 
Section 136 of CGST Act provides as follows - 
 
A statement made and signed by a person on appearance in response to any summons issued under section 70 
during the course of any inquiry or proceedings under this Act shall be relevant, for the purpose of provi ng, in 
any prosecution for an offence under this Act, the truth of the facts which it contains — 
 
(a)   when the person who made the statement is dead or cannot be found, or is incapable of giving 
evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained 
without an amount of delay or expense  which,  under the circumstances  of the case, the Court 
considers unreasonable; or 
(b)   when the person who made the statement is examined as a witness in the case before the Court and 
the Court is of the opinion that, having regard to the circumstances of the case, the statement should 
be admitted in evidence in the interests of justice. 
Interestingly, this section states that the statement is relevant only in prosecution of offence. Thus, the statement 
is not a relevant evidence before Appe late Authority and Appe late Tribunal also. 
Validity of similar provision in excise and customs [section 9D of Central Excise Act and section 138B of 
Customs  Act) has been upheld  in J&K  Cigarettes  v. CCE  (2009)  242  ELT 189  (Del HC  DB) [The 
cha lenge was provision for admitting evidence even without cross examination of witness]. 
In Takshila Spinners v. CCE 2001(131) ELT 568 (CEGAT), it was held that statements of witness who are 
not cross examined cannot be relied upon and demand on basis of such statement without any corroboration is 
not sustainable. - same view in Nu-Trend Business Machines v. CCE 2002(141) ELT 119 (CEGAT) * 
Metro (India) Wood Crafts v. CCE (2016) 333 ELT 418 (CESTAT) * Jindal Drugs v. UOI (2016) 340 
ELT 67 (P&H HC DB) * CCE v. Kuber Tobacco (2016) 338 ELT 113 (CESTAT) * Alliance Alloys v. 
CCE  (2016)  338  ELT  749  (CESTAT)  *  Ambika International   v.  UOI  (2016)  56  GST  499  =  71 
Latest Case53 (P&H HC DB). 
Statement  not  signed  by officer  who took the statement  has  no value - In State v. Yakub Ahmed 
A2000(125) ELT 113 (Bom), it was held that statement not recorded by gazetted officer of customs is not 
admissible as evidence - fo lowed in D M Gears v. CCE 2002(141) ELT 514 (CEGAT), where it was held 
that if a statement is not signed by an empowered officer nor disclosing identity of officer who recorded the 
statement, has no evidentiary value - fo lowed in Satpushp Steels v. CCE 2006 (196) ELT 105 (CESTAT). 
Collecting cheques by force during search - Often departmental authorities co lect cheques from assessee 
by force by threatening at time of preventive checks. In Abhishek Fashions v. UOI (2008) 15 STT 291 (Guj 
CA DHRUV AGRAWAL – National Chairman Taxation Committee-All India Confederation of Small & Micro Industries Association  
 
 
HC DB), it was held that there is no provision to co lect such cheques and department was asked to return the 
cheques forthwith. 
36.1-1 Person is not 'accused' when he is giving statement 
 
As per Article 20(3) of Constitution "No person accused of an offence shall be compe led to be a witness 
against himself". It was contended that in view of this, statement made before excise/customs authorities cannot 
be admitted as evidence. However, it was held that at the time of enquiry, the person is not 'accused of an 
offence' at that stage. Hence, his statements are not protected under Article 20(3) and it is admissible as 
evidence - Romesh Chandra  Mehta v. State of West Bengal - AIR 1970 SC 940 = 1969 (2) SCR 461 = 
110 ELT 324 (SC 5 member Constitution bench) - affirmed in Poolpandi  v. Superintendent,  C Ex. 62 
Taxman 447 = AIR 1992 SC 1795 = 60 ELT 24 (SC) = 75 Comp. Cas. 504 = (1992) 3 SCC 259 = 
1992(3) SCR 247 = 1992 AIR SCW 2012 (3 member bench) * K L Pavunny v. ACCE (1997) 3 SCC 
721 = 18 RLT 641 = 90 ELT 241 (SC 3 member bench) * Bhana Khalpa Bhai Patel v. ACC 96 ELT 211 
(SC) = AIR 1998 SC 1487 * ACCE v. Duncan Agro 2000 AIR SCW 3150 = 2000(7) SCC 53 = AIR 
2000 SC 2901 = 120 ELT 280 (SC) * Gulam Hussain Shaikh v. S Reynolds, Superintendent of Customs 
(2002) 1 SCC 155 = 134 ELT 3 = 2001 Latest Case132 (SC) * UOI v. Padam  Narain  Aggarwal 
(2008) 231 ELT 397 (SC) * IVRCL Infrastructure  v. CC (2015) 51 GST 335 = 57 Latest Case409 
(SC). 
However, once FIR (First Information Report) is lodged, the person becomes a 'person accused' and hence 
the constitutional protection is available  to a subsequent  statement,  even if the person is not specifica ly 
mentioned in FIR. However, in this case, the Court held that though an accused person is not required to be 
witness against himself, this does not mean that he need not give information regarding matters which do not 
tend to incriminate him. - . - Ramanlal Bhogilal Shah v. D K Guha - 1973 (1) SCC 696 = AIR 1973 SC 
1196. 
 
Rea ly, the issue is not free from doubt. In Nandini Satpathy v. P L Dani (1978) 2 SCC 424, it was held that 
protection under Article 20(3) extends even at investigation stage - quoted with approval in Selvi v. State of 
Karnataka  (2010) 7 SCC 263 (SC 3 member bench). 
36.1-2 Tax officer is not a police officer 
 
A statement made before police officer cannot be admitted as an evidence. However, tax officer is not 'police 
officer'  though  he  is  invested  with  some  powers  of  a  police  officer.  Hence,  statement  made  before 
customs/excise officer can be admitted as evidence - Illias v. CC - 1969 2 SCR 613 = 1983 (13) ELT 1427 
= AIR 1970 SC 1065 - (SC 5 member Constitution Bench) * State of Punjab v. Barkat Ram - AIR 1962 
SC 276.* Romesh Chandra  Mehta v. State of West Bengal - AIR 1970 SC 940 = 1969 (2) SCR 461 = 
110 ELT 324 (SC 5 member Constitution bench) * Surjeet Singh Chhabra v. UOI 1997 AIR SCW 2507 = 
AIR 1997 SC 2560 = 17 RLT 331 = 89 ELT 646 (SC) * Badku Joti Savant v. State of Mysore - 1966 (3) 
SCR 698 = AIR 1966 SC 1746 = 2 ELT (J 323) (SC 5 member bench) * Jethmal v. UOI 110 ELT 379 
(SC) * Hazari Singh v. UOI 110 ELT 406 (SC). 
In Percy Rustomji Basta v. State of Maharashtra AIR 1971 SC 1087 = 13 ELT 1443 = 1971(1) SCC 
847, it was held that excise officers are not police officers and the person making a statement is not 'accused' 
since the statement is recorded before issue of show cause notice etc. and hence there is no bar in using the 
statement as evidence in excise adjudication and other legal proceedings - same view in K.T. Advani v. The 
State - 1987 (3) ELT 390 * Surjeet Singh Chhabra v. UOI 1997 AIR SCW 2507 = AIR 1997 SC 2560 = 
17 RLT 331 = 89 ELT 646 (SC)]. In Raj Kumar Karwal v. UOI (1990) 2 SCC 409 = AIR 1991 SC 45 = 
48 ELT 496 (SC) also, it was held that excise officer cannot be termed as police officer unless he has power 
CA DHRUV AGRAWAL – National Chairman Taxation Committee-All India Confederation of Small & Micro Industries Association  
 
 
to lodge report under section 173 of Code of Criminal Procedure. In State of Gujarat  v. Anirudhsing 1997 
AIR SCW 2758, Supreme Court has gone a step ahead and has decided that reserve police officer, though in 
charge of police station, is not a 'police officer' for provision of Chapter XII of CrPC and statement before him 
is admissible. 
36.1-3 Statement must be voluntary as well as true 
 
It must not only be established that statement is vol untary but also it must be established that the statement is 
true. For purpose of establishing the truth, it is necessary to examine the confession and compare it with rest of 
the evidence on record - Sarwan Singh v. State of Punjab - AIR 1957 SC 637. Confession, before relied 
upon, must be established to have been made voluntarily and true - Mohabir Biswas v. State of WB - (1995) 
2 SCC 25 (3 member bench). 
 
If a statement is not true, that cannot be used even if the same were confessional in nature because the settled 
law is that for a confession to be used against the maker in criminal case, the same has to be both true and 
voluntary. - State of Haryana  v. Rajinder Singh - (1996) 2 SCALE 488. In K L Pavunny  v. ACCE 
1997(3) SCC 721 = 18 RLT 641 = 90 ELT 241 (SC 3 member bench) also, it was held that the statement 
must be voluntary and true. In Sahib Singh v. State of Haryana  1997 AIR SCW 3306 = 1997(7) SCC 231 
= AIR 1997 SC 3247, it was observed - 'Before a conviction can be based on 'confession', it has to be 
shown that it was truthful'. 
Statement  must be voluntary - Statement should be voluntary. If it appears to be by inducement, threat or 
coercion, it has to be outri ght rejected - KTMS Mohammed v. UOI AIR 1992 SC 1831 = (1992) 3 SCC 
178 = 197 ITR 196 = 1992 AIR SCW 2062 = 65 Taxman 130 (SC) * Vinod Solanki v. UOI (2009) 92 
SCL 157 = 233 ELT 157 (SC) * Galaxy Indo Fab v. CCE (2010) 258 ELT 254 (CESTAT). 
 
Statement made must be voluntary and true. It may not be relied upon if it is untrue on material particulars. 
Similarly, statement obtained under inducement, threat or promise is hit by section 24 of Evidence Act and is 
not admissible. - Sevantilal Karsondas Modi v. State of Maharashtra - AIR 1979 SC 705 = 109 ELT 41, 
fo lowed in Sajjan Kumar Poddar  v. CC (Prev) - 1992 (58) ELT 283 (CEGAT). * Debu Saha v. CC 
(Prev) - 1992 (59) ELT 442 (CEGAT). 
Statement  should  be accepted after scrutiny - In Haroon  Haji Abdulla v. State of Maharashtra AIR 
1968 SC 832 = (1968) 2 SCR 641 = 110 ELT 309, Hon. Supreme Court had held that the statement is not 
made subject to safeguards  under which confessions  are recorded  by Magistrate.  Hence,  these must be 
specia ly scrutinised to find if they were voluntary. 
36.1-4 Retraction of Statement 
 
If a person a leges that his statement is obtained  by coercion or force or inducement,  he can retract his 
statement, but the statement should be retracted as early as possible. Retracted statement does not become a 
nu lity. 
Apex Court in KTMS Mohammed v. UOI AIR 1992 SC 1831 = (1992) 3 SCC 178 = 197 ITR 196 = 
1992 AIR SCW 2062 = 65 Taxman 130, have held that merely because a statement is retracted, it cannot be 
recorded as involuntary or unlawfully  obtained. It is for the maker of statement who a leges inducement, threat, 
promises  etc. to establish his a legations  of inducement,  threat etc. against the officer  who  recorded  the 
statement. However, even if he fails to establish his a legations of inducement, threat etc., the authority should 
at least subjectively apply its mind to the retraction to hold that the inculpatory statement was not extorted. . . . 
. . . . He should consider the retraction and record his opinion before accepting the inculpatory statement. . . . . 
. . . The retraction should be rejected in writing. 
 
A person accused of omission of offense is not expected to prove to the hilt that confession has been obtained 
Page 4


CA DHRUV AGRAWAL – National Chairman Taxation Committee-All India Confederation of Small & Micro Industries Association  
 
 
 
 
 
 
 
 
 
 
 
 
CHAPTER 36 - Provi si ons rel ati ng to evi dence 
 
 
 
 
 
CHAPTER 36 
 
Provisions relating to evidence 
 
GST Law makes specific provisions relating to evidence in various cases. 
 
36.1 Relevancy  of statements under certain circumstances 
 
Section 136 of CGST Act provides as follows - 
 
A statement made and signed by a person on appearance in response to any summons issued under section 70 
during the course of any inquiry or proceedings under this Act shall be relevant, for the purpose of provi ng, in 
any prosecution for an offence under this Act, the truth of the facts which it contains — 
 
(a)   when the person who made the statement is dead or cannot be found, or is incapable of giving 
evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained 
without an amount of delay or expense  which,  under the circumstances  of the case, the Court 
considers unreasonable; or 
(b)   when the person who made the statement is examined as a witness in the case before the Court and 
the Court is of the opinion that, having regard to the circumstances of the case, the statement should 
be admitted in evidence in the interests of justice. 
Interestingly, this section states that the statement is relevant only in prosecution of offence. Thus, the statement 
is not a relevant evidence before Appe late Authority and Appe late Tribunal also. 
Validity of similar provision in excise and customs [section 9D of Central Excise Act and section 138B of 
Customs  Act) has been upheld  in J&K  Cigarettes  v. CCE  (2009)  242  ELT 189  (Del HC  DB) [The 
cha lenge was provision for admitting evidence even without cross examination of witness]. 
In Takshila Spinners v. CCE 2001(131) ELT 568 (CEGAT), it was held that statements of witness who are 
not cross examined cannot be relied upon and demand on basis of such statement without any corroboration is 
not sustainable. - same view in Nu-Trend Business Machines v. CCE 2002(141) ELT 119 (CEGAT) * 
Metro (India) Wood Crafts v. CCE (2016) 333 ELT 418 (CESTAT) * Jindal Drugs v. UOI (2016) 340 
ELT 67 (P&H HC DB) * CCE v. Kuber Tobacco (2016) 338 ELT 113 (CESTAT) * Alliance Alloys v. 
CCE  (2016)  338  ELT  749  (CESTAT)  *  Ambika International   v.  UOI  (2016)  56  GST  499  =  71 
Latest Case53 (P&H HC DB). 
Statement  not  signed  by officer  who took the statement  has  no value - In State v. Yakub Ahmed 
A2000(125) ELT 113 (Bom), it was held that statement not recorded by gazetted officer of customs is not 
admissible as evidence - fo lowed in D M Gears v. CCE 2002(141) ELT 514 (CEGAT), where it was held 
that if a statement is not signed by an empowered officer nor disclosing identity of officer who recorded the 
statement, has no evidentiary value - fo lowed in Satpushp Steels v. CCE 2006 (196) ELT 105 (CESTAT). 
Collecting cheques by force during search - Often departmental authorities co lect cheques from assessee 
by force by threatening at time of preventive checks. In Abhishek Fashions v. UOI (2008) 15 STT 291 (Guj 
CA DHRUV AGRAWAL – National Chairman Taxation Committee-All India Confederation of Small & Micro Industries Association  
 
 
HC DB), it was held that there is no provision to co lect such cheques and department was asked to return the 
cheques forthwith. 
36.1-1 Person is not 'accused' when he is giving statement 
 
As per Article 20(3) of Constitution "No person accused of an offence shall be compe led to be a witness 
against himself". It was contended that in view of this, statement made before excise/customs authorities cannot 
be admitted as evidence. However, it was held that at the time of enquiry, the person is not 'accused of an 
offence' at that stage. Hence, his statements are not protected under Article 20(3) and it is admissible as 
evidence - Romesh Chandra  Mehta v. State of West Bengal - AIR 1970 SC 940 = 1969 (2) SCR 461 = 
110 ELT 324 (SC 5 member Constitution bench) - affirmed in Poolpandi  v. Superintendent,  C Ex. 62 
Taxman 447 = AIR 1992 SC 1795 = 60 ELT 24 (SC) = 75 Comp. Cas. 504 = (1992) 3 SCC 259 = 
1992(3) SCR 247 = 1992 AIR SCW 2012 (3 member bench) * K L Pavunny v. ACCE (1997) 3 SCC 
721 = 18 RLT 641 = 90 ELT 241 (SC 3 member bench) * Bhana Khalpa Bhai Patel v. ACC 96 ELT 211 
(SC) = AIR 1998 SC 1487 * ACCE v. Duncan Agro 2000 AIR SCW 3150 = 2000(7) SCC 53 = AIR 
2000 SC 2901 = 120 ELT 280 (SC) * Gulam Hussain Shaikh v. S Reynolds, Superintendent of Customs 
(2002) 1 SCC 155 = 134 ELT 3 = 2001 Latest Case132 (SC) * UOI v. Padam  Narain  Aggarwal 
(2008) 231 ELT 397 (SC) * IVRCL Infrastructure  v. CC (2015) 51 GST 335 = 57 Latest Case409 
(SC). 
However, once FIR (First Information Report) is lodged, the person becomes a 'person accused' and hence 
the constitutional protection is available  to a subsequent  statement,  even if the person is not specifica ly 
mentioned in FIR. However, in this case, the Court held that though an accused person is not required to be 
witness against himself, this does not mean that he need not give information regarding matters which do not 
tend to incriminate him. - . - Ramanlal Bhogilal Shah v. D K Guha - 1973 (1) SCC 696 = AIR 1973 SC 
1196. 
 
Rea ly, the issue is not free from doubt. In Nandini Satpathy v. P L Dani (1978) 2 SCC 424, it was held that 
protection under Article 20(3) extends even at investigation stage - quoted with approval in Selvi v. State of 
Karnataka  (2010) 7 SCC 263 (SC 3 member bench). 
36.1-2 Tax officer is not a police officer 
 
A statement made before police officer cannot be admitted as an evidence. However, tax officer is not 'police 
officer'  though  he  is  invested  with  some  powers  of  a  police  officer.  Hence,  statement  made  before 
customs/excise officer can be admitted as evidence - Illias v. CC - 1969 2 SCR 613 = 1983 (13) ELT 1427 
= AIR 1970 SC 1065 - (SC 5 member Constitution Bench) * State of Punjab v. Barkat Ram - AIR 1962 
SC 276.* Romesh Chandra  Mehta v. State of West Bengal - AIR 1970 SC 940 = 1969 (2) SCR 461 = 
110 ELT 324 (SC 5 member Constitution bench) * Surjeet Singh Chhabra v. UOI 1997 AIR SCW 2507 = 
AIR 1997 SC 2560 = 17 RLT 331 = 89 ELT 646 (SC) * Badku Joti Savant v. State of Mysore - 1966 (3) 
SCR 698 = AIR 1966 SC 1746 = 2 ELT (J 323) (SC 5 member bench) * Jethmal v. UOI 110 ELT 379 
(SC) * Hazari Singh v. UOI 110 ELT 406 (SC). 
In Percy Rustomji Basta v. State of Maharashtra AIR 1971 SC 1087 = 13 ELT 1443 = 1971(1) SCC 
847, it was held that excise officers are not police officers and the person making a statement is not 'accused' 
since the statement is recorded before issue of show cause notice etc. and hence there is no bar in using the 
statement as evidence in excise adjudication and other legal proceedings - same view in K.T. Advani v. The 
State - 1987 (3) ELT 390 * Surjeet Singh Chhabra v. UOI 1997 AIR SCW 2507 = AIR 1997 SC 2560 = 
17 RLT 331 = 89 ELT 646 (SC)]. In Raj Kumar Karwal v. UOI (1990) 2 SCC 409 = AIR 1991 SC 45 = 
48 ELT 496 (SC) also, it was held that excise officer cannot be termed as police officer unless he has power 
CA DHRUV AGRAWAL – National Chairman Taxation Committee-All India Confederation of Small & Micro Industries Association  
 
 
to lodge report under section 173 of Code of Criminal Procedure. In State of Gujarat  v. Anirudhsing 1997 
AIR SCW 2758, Supreme Court has gone a step ahead and has decided that reserve police officer, though in 
charge of police station, is not a 'police officer' for provision of Chapter XII of CrPC and statement before him 
is admissible. 
36.1-3 Statement must be voluntary as well as true 
 
It must not only be established that statement is vol untary but also it must be established that the statement is 
true. For purpose of establishing the truth, it is necessary to examine the confession and compare it with rest of 
the evidence on record - Sarwan Singh v. State of Punjab - AIR 1957 SC 637. Confession, before relied 
upon, must be established to have been made voluntarily and true - Mohabir Biswas v. State of WB - (1995) 
2 SCC 25 (3 member bench). 
 
If a statement is not true, that cannot be used even if the same were confessional in nature because the settled 
law is that for a confession to be used against the maker in criminal case, the same has to be both true and 
voluntary. - State of Haryana  v. Rajinder Singh - (1996) 2 SCALE 488. In K L Pavunny  v. ACCE 
1997(3) SCC 721 = 18 RLT 641 = 90 ELT 241 (SC 3 member bench) also, it was held that the statement 
must be voluntary and true. In Sahib Singh v. State of Haryana  1997 AIR SCW 3306 = 1997(7) SCC 231 
= AIR 1997 SC 3247, it was observed - 'Before a conviction can be based on 'confession', it has to be 
shown that it was truthful'. 
Statement  must be voluntary - Statement should be voluntary. If it appears to be by inducement, threat or 
coercion, it has to be outri ght rejected - KTMS Mohammed v. UOI AIR 1992 SC 1831 = (1992) 3 SCC 
178 = 197 ITR 196 = 1992 AIR SCW 2062 = 65 Taxman 130 (SC) * Vinod Solanki v. UOI (2009) 92 
SCL 157 = 233 ELT 157 (SC) * Galaxy Indo Fab v. CCE (2010) 258 ELT 254 (CESTAT). 
 
Statement made must be voluntary and true. It may not be relied upon if it is untrue on material particulars. 
Similarly, statement obtained under inducement, threat or promise is hit by section 24 of Evidence Act and is 
not admissible. - Sevantilal Karsondas Modi v. State of Maharashtra - AIR 1979 SC 705 = 109 ELT 41, 
fo lowed in Sajjan Kumar Poddar  v. CC (Prev) - 1992 (58) ELT 283 (CEGAT). * Debu Saha v. CC 
(Prev) - 1992 (59) ELT 442 (CEGAT). 
Statement  should  be accepted after scrutiny - In Haroon  Haji Abdulla v. State of Maharashtra AIR 
1968 SC 832 = (1968) 2 SCR 641 = 110 ELT 309, Hon. Supreme Court had held that the statement is not 
made subject to safeguards  under which confessions  are recorded  by Magistrate.  Hence,  these must be 
specia ly scrutinised to find if they were voluntary. 
36.1-4 Retraction of Statement 
 
If a person a leges that his statement is obtained  by coercion or force or inducement,  he can retract his 
statement, but the statement should be retracted as early as possible. Retracted statement does not become a 
nu lity. 
Apex Court in KTMS Mohammed v. UOI AIR 1992 SC 1831 = (1992) 3 SCC 178 = 197 ITR 196 = 
1992 AIR SCW 2062 = 65 Taxman 130, have held that merely because a statement is retracted, it cannot be 
recorded as involuntary or unlawfully  obtained. It is for the maker of statement who a leges inducement, threat, 
promises  etc. to establish his a legations  of inducement,  threat etc. against the officer  who  recorded  the 
statement. However, even if he fails to establish his a legations of inducement, threat etc., the authority should 
at least subjectively apply its mind to the retraction to hold that the inculpatory statement was not extorted. . . . 
. . . . He should consider the retraction and record his opinion before accepting the inculpatory statement. . . . . 
. . . The retraction should be rejected in writing. 
 
A person accused of omission of offense is not expected to prove to the hilt that confession has been obtained 
CA DHRUV AGRAWAL – National Chairman Taxation Committee-All India Confederation of Small & Micro Industries Association  
 
 
from him by inducement, threat or promise by a person in authority. Initial burden to prove that confession was 
voluntary is on department. However, mere retraction of confessions is not sufficient to make the statement 
irrelevant. Court has to consider implications of both confession and retraction. If confession is retracted, it 
must be corroborated by other independent and cogent evidences - Vinod Solanki v. UOI (2009) 92 SCL 
157 = 233 ELT 157 = 13 STR 337 (SC). 
 
In Surjeet Singh Chhabra  v. UOI 1997 AIR SCW 2507 = AIR 1997 SC 2560 = 17 RLT 331 = 89 ELT 
646 (SC), a confession made before customs officer was held binding even if retracted later. It was also held 
that in case of confessional statement, non-tendering of witnesses for cross-examination is not violation of 
principles of natural justice - fo lowed in Chandra Impex v. CC (2008) 224 ELT 583 (CESTAT). 
Conviction can be based on confession itself, even if retracted later. However, Court would require some 
corroboration in the confessional statement - Sarwan Singh Rattan Singh v. State of Punjab  - AIR 1957 
SC 637 = 1957 SCR 953 - quoted with approval in Mohabir Biswas v. State of WB - (1995) 2 SCC 25 (3 
member bench) * State of Maharashtra v. Damu Gopinath 2000 AIR SCW 1625 = (2000) 6 SCC 269 = 
AIR 2000 SC 1691. 
If a statement is retracted, the same should be corroborated on material particulars - Parmananda Pegu v. 
State of Assam (2004)  7 SCC  779  = 2004  AIR SCW  4930  * State  of Maharashtra v. Hasmukh 
Hargovind Shah - 1993 Cr LJ 1953 (Bom HC) * Elex Knitting v. CCE 2003 (158) ELT 499 (CESTAT) 
* Pascoal  Das  v. CC  2003  (157) ELT 132  (Bom HC) * Opel Alloys v. CCE  2005  (182)  ELT 64 
(CESTAT) * Hunsoor Plywood Works v. CCE 2006 (201) ELT 239 (CESTAT). 
Supreme Court in Haroon  Haji Abdulla v. State of Maharashtra - AIR 1968 SC 832 = (1968) 2 SCR 
641 = 110 ELT 309, has held that statement must be voluntary and if statement appears to have been 
obtained by coercion, inducement or threat, it must be rejected. However, merely because a statement is 
retracted,  it cannot be recorded as involuntary or unlawfully  obtained.  Authority should apply its mind to 
retraction and record its opinion before it is accepted (as vol untary). In Pyare  Lal Bhargava  v. State of 
Rajasthan - AIR 1963 SC 1094 (SC 4 member bench) also, it has been held that a retracted confession may 
form the legal basis of conviction if the court is satisfied that it was true and voluntarily made. However, though 
not a rule of law, as a rule of prudence, conviction on such retracted confession should not be made without 
corroboration in material particulars. 
36.2 Presumption as to documents in certain cases 
 
This is rule of evidence. 
 
Where any document- (i) is produced by any person under the Act or any other law, or ( i) has been seized 
from the custody or control of any person under the Act or any other law for the time being in force, and such 
document is tendered by the prosecution in evidence against him or any other person who is tried jointly with 
him, the court shall presume that document as true and signature and hand writing is genuine. - section 144 of 
CGST Act. 
This is rebuttable  presumption.  The accused  can produce  evidence  to establish that the document is not 
genuine and cannot be accepted as evidence. 
"Document" includes written or printed record of any sort and electronic record as defined in section 2(t) of 
the Information Technology Act, 2000 - section 2(41) of CGST Act. 
36.3  Admissibility  of  micro  films,  facsimile   copies   of  documents  and   computer printouts  as 
documents and as evidence 
(a) micro f ilm of a document or the reproduction of the image or images embodied in such micro f ilm (whether 
Page 5


CA DHRUV AGRAWAL – National Chairman Taxation Committee-All India Confederation of Small & Micro Industries Association  
 
 
 
 
 
 
 
 
 
 
 
 
CHAPTER 36 - Provi si ons rel ati ng to evi dence 
 
 
 
 
 
CHAPTER 36 
 
Provisions relating to evidence 
 
GST Law makes specific provisions relating to evidence in various cases. 
 
36.1 Relevancy  of statements under certain circumstances 
 
Section 136 of CGST Act provides as follows - 
 
A statement made and signed by a person on appearance in response to any summons issued under section 70 
during the course of any inquiry or proceedings under this Act shall be relevant, for the purpose of provi ng, in 
any prosecution for an offence under this Act, the truth of the facts which it contains — 
 
(a)   when the person who made the statement is dead or cannot be found, or is incapable of giving 
evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained 
without an amount of delay or expense  which,  under the circumstances  of the case, the Court 
considers unreasonable; or 
(b)   when the person who made the statement is examined as a witness in the case before the Court and 
the Court is of the opinion that, having regard to the circumstances of the case, the statement should 
be admitted in evidence in the interests of justice. 
Interestingly, this section states that the statement is relevant only in prosecution of offence. Thus, the statement 
is not a relevant evidence before Appe late Authority and Appe late Tribunal also. 
Validity of similar provision in excise and customs [section 9D of Central Excise Act and section 138B of 
Customs  Act) has been upheld  in J&K  Cigarettes  v. CCE  (2009)  242  ELT 189  (Del HC  DB) [The 
cha lenge was provision for admitting evidence even without cross examination of witness]. 
In Takshila Spinners v. CCE 2001(131) ELT 568 (CEGAT), it was held that statements of witness who are 
not cross examined cannot be relied upon and demand on basis of such statement without any corroboration is 
not sustainable. - same view in Nu-Trend Business Machines v. CCE 2002(141) ELT 119 (CEGAT) * 
Metro (India) Wood Crafts v. CCE (2016) 333 ELT 418 (CESTAT) * Jindal Drugs v. UOI (2016) 340 
ELT 67 (P&H HC DB) * CCE v. Kuber Tobacco (2016) 338 ELT 113 (CESTAT) * Alliance Alloys v. 
CCE  (2016)  338  ELT  749  (CESTAT)  *  Ambika International   v.  UOI  (2016)  56  GST  499  =  71 
Latest Case53 (P&H HC DB). 
Statement  not  signed  by officer  who took the statement  has  no value - In State v. Yakub Ahmed 
A2000(125) ELT 113 (Bom), it was held that statement not recorded by gazetted officer of customs is not 
admissible as evidence - fo lowed in D M Gears v. CCE 2002(141) ELT 514 (CEGAT), where it was held 
that if a statement is not signed by an empowered officer nor disclosing identity of officer who recorded the 
statement, has no evidentiary value - fo lowed in Satpushp Steels v. CCE 2006 (196) ELT 105 (CESTAT). 
Collecting cheques by force during search - Often departmental authorities co lect cheques from assessee 
by force by threatening at time of preventive checks. In Abhishek Fashions v. UOI (2008) 15 STT 291 (Guj 
CA DHRUV AGRAWAL – National Chairman Taxation Committee-All India Confederation of Small & Micro Industries Association  
 
 
HC DB), it was held that there is no provision to co lect such cheques and department was asked to return the 
cheques forthwith. 
36.1-1 Person is not 'accused' when he is giving statement 
 
As per Article 20(3) of Constitution "No person accused of an offence shall be compe led to be a witness 
against himself". It was contended that in view of this, statement made before excise/customs authorities cannot 
be admitted as evidence. However, it was held that at the time of enquiry, the person is not 'accused of an 
offence' at that stage. Hence, his statements are not protected under Article 20(3) and it is admissible as 
evidence - Romesh Chandra  Mehta v. State of West Bengal - AIR 1970 SC 940 = 1969 (2) SCR 461 = 
110 ELT 324 (SC 5 member Constitution bench) - affirmed in Poolpandi  v. Superintendent,  C Ex. 62 
Taxman 447 = AIR 1992 SC 1795 = 60 ELT 24 (SC) = 75 Comp. Cas. 504 = (1992) 3 SCC 259 = 
1992(3) SCR 247 = 1992 AIR SCW 2012 (3 member bench) * K L Pavunny v. ACCE (1997) 3 SCC 
721 = 18 RLT 641 = 90 ELT 241 (SC 3 member bench) * Bhana Khalpa Bhai Patel v. ACC 96 ELT 211 
(SC) = AIR 1998 SC 1487 * ACCE v. Duncan Agro 2000 AIR SCW 3150 = 2000(7) SCC 53 = AIR 
2000 SC 2901 = 120 ELT 280 (SC) * Gulam Hussain Shaikh v. S Reynolds, Superintendent of Customs 
(2002) 1 SCC 155 = 134 ELT 3 = 2001 Latest Case132 (SC) * UOI v. Padam  Narain  Aggarwal 
(2008) 231 ELT 397 (SC) * IVRCL Infrastructure  v. CC (2015) 51 GST 335 = 57 Latest Case409 
(SC). 
However, once FIR (First Information Report) is lodged, the person becomes a 'person accused' and hence 
the constitutional protection is available  to a subsequent  statement,  even if the person is not specifica ly 
mentioned in FIR. However, in this case, the Court held that though an accused person is not required to be 
witness against himself, this does not mean that he need not give information regarding matters which do not 
tend to incriminate him. - . - Ramanlal Bhogilal Shah v. D K Guha - 1973 (1) SCC 696 = AIR 1973 SC 
1196. 
 
Rea ly, the issue is not free from doubt. In Nandini Satpathy v. P L Dani (1978) 2 SCC 424, it was held that 
protection under Article 20(3) extends even at investigation stage - quoted with approval in Selvi v. State of 
Karnataka  (2010) 7 SCC 263 (SC 3 member bench). 
36.1-2 Tax officer is not a police officer 
 
A statement made before police officer cannot be admitted as an evidence. However, tax officer is not 'police 
officer'  though  he  is  invested  with  some  powers  of  a  police  officer.  Hence,  statement  made  before 
customs/excise officer can be admitted as evidence - Illias v. CC - 1969 2 SCR 613 = 1983 (13) ELT 1427 
= AIR 1970 SC 1065 - (SC 5 member Constitution Bench) * State of Punjab v. Barkat Ram - AIR 1962 
SC 276.* Romesh Chandra  Mehta v. State of West Bengal - AIR 1970 SC 940 = 1969 (2) SCR 461 = 
110 ELT 324 (SC 5 member Constitution bench) * Surjeet Singh Chhabra v. UOI 1997 AIR SCW 2507 = 
AIR 1997 SC 2560 = 17 RLT 331 = 89 ELT 646 (SC) * Badku Joti Savant v. State of Mysore - 1966 (3) 
SCR 698 = AIR 1966 SC 1746 = 2 ELT (J 323) (SC 5 member bench) * Jethmal v. UOI 110 ELT 379 
(SC) * Hazari Singh v. UOI 110 ELT 406 (SC). 
In Percy Rustomji Basta v. State of Maharashtra AIR 1971 SC 1087 = 13 ELT 1443 = 1971(1) SCC 
847, it was held that excise officers are not police officers and the person making a statement is not 'accused' 
since the statement is recorded before issue of show cause notice etc. and hence there is no bar in using the 
statement as evidence in excise adjudication and other legal proceedings - same view in K.T. Advani v. The 
State - 1987 (3) ELT 390 * Surjeet Singh Chhabra v. UOI 1997 AIR SCW 2507 = AIR 1997 SC 2560 = 
17 RLT 331 = 89 ELT 646 (SC)]. In Raj Kumar Karwal v. UOI (1990) 2 SCC 409 = AIR 1991 SC 45 = 
48 ELT 496 (SC) also, it was held that excise officer cannot be termed as police officer unless he has power 
CA DHRUV AGRAWAL – National Chairman Taxation Committee-All India Confederation of Small & Micro Industries Association  
 
 
to lodge report under section 173 of Code of Criminal Procedure. In State of Gujarat  v. Anirudhsing 1997 
AIR SCW 2758, Supreme Court has gone a step ahead and has decided that reserve police officer, though in 
charge of police station, is not a 'police officer' for provision of Chapter XII of CrPC and statement before him 
is admissible. 
36.1-3 Statement must be voluntary as well as true 
 
It must not only be established that statement is vol untary but also it must be established that the statement is 
true. For purpose of establishing the truth, it is necessary to examine the confession and compare it with rest of 
the evidence on record - Sarwan Singh v. State of Punjab - AIR 1957 SC 637. Confession, before relied 
upon, must be established to have been made voluntarily and true - Mohabir Biswas v. State of WB - (1995) 
2 SCC 25 (3 member bench). 
 
If a statement is not true, that cannot be used even if the same were confessional in nature because the settled 
law is that for a confession to be used against the maker in criminal case, the same has to be both true and 
voluntary. - State of Haryana  v. Rajinder Singh - (1996) 2 SCALE 488. In K L Pavunny  v. ACCE 
1997(3) SCC 721 = 18 RLT 641 = 90 ELT 241 (SC 3 member bench) also, it was held that the statement 
must be voluntary and true. In Sahib Singh v. State of Haryana  1997 AIR SCW 3306 = 1997(7) SCC 231 
= AIR 1997 SC 3247, it was observed - 'Before a conviction can be based on 'confession', it has to be 
shown that it was truthful'. 
Statement  must be voluntary - Statement should be voluntary. If it appears to be by inducement, threat or 
coercion, it has to be outri ght rejected - KTMS Mohammed v. UOI AIR 1992 SC 1831 = (1992) 3 SCC 
178 = 197 ITR 196 = 1992 AIR SCW 2062 = 65 Taxman 130 (SC) * Vinod Solanki v. UOI (2009) 92 
SCL 157 = 233 ELT 157 (SC) * Galaxy Indo Fab v. CCE (2010) 258 ELT 254 (CESTAT). 
 
Statement made must be voluntary and true. It may not be relied upon if it is untrue on material particulars. 
Similarly, statement obtained under inducement, threat or promise is hit by section 24 of Evidence Act and is 
not admissible. - Sevantilal Karsondas Modi v. State of Maharashtra - AIR 1979 SC 705 = 109 ELT 41, 
fo lowed in Sajjan Kumar Poddar  v. CC (Prev) - 1992 (58) ELT 283 (CEGAT). * Debu Saha v. CC 
(Prev) - 1992 (59) ELT 442 (CEGAT). 
Statement  should  be accepted after scrutiny - In Haroon  Haji Abdulla v. State of Maharashtra AIR 
1968 SC 832 = (1968) 2 SCR 641 = 110 ELT 309, Hon. Supreme Court had held that the statement is not 
made subject to safeguards  under which confessions  are recorded  by Magistrate.  Hence,  these must be 
specia ly scrutinised to find if they were voluntary. 
36.1-4 Retraction of Statement 
 
If a person a leges that his statement is obtained  by coercion or force or inducement,  he can retract his 
statement, but the statement should be retracted as early as possible. Retracted statement does not become a 
nu lity. 
Apex Court in KTMS Mohammed v. UOI AIR 1992 SC 1831 = (1992) 3 SCC 178 = 197 ITR 196 = 
1992 AIR SCW 2062 = 65 Taxman 130, have held that merely because a statement is retracted, it cannot be 
recorded as involuntary or unlawfully  obtained. It is for the maker of statement who a leges inducement, threat, 
promises  etc. to establish his a legations  of inducement,  threat etc. against the officer  who  recorded  the 
statement. However, even if he fails to establish his a legations of inducement, threat etc., the authority should 
at least subjectively apply its mind to the retraction to hold that the inculpatory statement was not extorted. . . . 
. . . . He should consider the retraction and record his opinion before accepting the inculpatory statement. . . . . 
. . . The retraction should be rejected in writing. 
 
A person accused of omission of offense is not expected to prove to the hilt that confession has been obtained 
CA DHRUV AGRAWAL – National Chairman Taxation Committee-All India Confederation of Small & Micro Industries Association  
 
 
from him by inducement, threat or promise by a person in authority. Initial burden to prove that confession was 
voluntary is on department. However, mere retraction of confessions is not sufficient to make the statement 
irrelevant. Court has to consider implications of both confession and retraction. If confession is retracted, it 
must be corroborated by other independent and cogent evidences - Vinod Solanki v. UOI (2009) 92 SCL 
157 = 233 ELT 157 = 13 STR 337 (SC). 
 
In Surjeet Singh Chhabra  v. UOI 1997 AIR SCW 2507 = AIR 1997 SC 2560 = 17 RLT 331 = 89 ELT 
646 (SC), a confession made before customs officer was held binding even if retracted later. It was also held 
that in case of confessional statement, non-tendering of witnesses for cross-examination is not violation of 
principles of natural justice - fo lowed in Chandra Impex v. CC (2008) 224 ELT 583 (CESTAT). 
Conviction can be based on confession itself, even if retracted later. However, Court would require some 
corroboration in the confessional statement - Sarwan Singh Rattan Singh v. State of Punjab  - AIR 1957 
SC 637 = 1957 SCR 953 - quoted with approval in Mohabir Biswas v. State of WB - (1995) 2 SCC 25 (3 
member bench) * State of Maharashtra v. Damu Gopinath 2000 AIR SCW 1625 = (2000) 6 SCC 269 = 
AIR 2000 SC 1691. 
If a statement is retracted, the same should be corroborated on material particulars - Parmananda Pegu v. 
State of Assam (2004)  7 SCC  779  = 2004  AIR SCW  4930  * State  of Maharashtra v. Hasmukh 
Hargovind Shah - 1993 Cr LJ 1953 (Bom HC) * Elex Knitting v. CCE 2003 (158) ELT 499 (CESTAT) 
* Pascoal  Das  v. CC  2003  (157) ELT 132  (Bom HC) * Opel Alloys v. CCE  2005  (182)  ELT 64 
(CESTAT) * Hunsoor Plywood Works v. CCE 2006 (201) ELT 239 (CESTAT). 
Supreme Court in Haroon  Haji Abdulla v. State of Maharashtra - AIR 1968 SC 832 = (1968) 2 SCR 
641 = 110 ELT 309, has held that statement must be voluntary and if statement appears to have been 
obtained by coercion, inducement or threat, it must be rejected. However, merely because a statement is 
retracted,  it cannot be recorded as involuntary or unlawfully  obtained.  Authority should apply its mind to 
retraction and record its opinion before it is accepted (as vol untary). In Pyare  Lal Bhargava  v. State of 
Rajasthan - AIR 1963 SC 1094 (SC 4 member bench) also, it has been held that a retracted confession may 
form the legal basis of conviction if the court is satisfied that it was true and voluntarily made. However, though 
not a rule of law, as a rule of prudence, conviction on such retracted confession should not be made without 
corroboration in material particulars. 
36.2 Presumption as to documents in certain cases 
 
This is rule of evidence. 
 
Where any document- (i) is produced by any person under the Act or any other law, or ( i) has been seized 
from the custody or control of any person under the Act or any other law for the time being in force, and such 
document is tendered by the prosecution in evidence against him or any other person who is tried jointly with 
him, the court shall presume that document as true and signature and hand writing is genuine. - section 144 of 
CGST Act. 
This is rebuttable  presumption.  The accused  can produce  evidence  to establish that the document is not 
genuine and cannot be accepted as evidence. 
"Document" includes written or printed record of any sort and electronic record as defined in section 2(t) of 
the Information Technology Act, 2000 - section 2(41) of CGST Act. 
36.3  Admissibility  of  micro  films,  facsimile   copies   of  documents  and   computer printouts  as 
documents and as evidence 
(a) micro f ilm of a document or the reproduction of the image or images embodied in such micro f ilm (whether 
CA DHRUV AGRAWAL – National Chairman Taxation Committee-All India Confederation of Small & Micro Industries Association  
 
 
enlarged or not); or (b) a facsimile copy of a document; or (c) a statement contained in a document and 
included in a printed material produced by a computer, subject to such conditions as mat be prescribed or (d) 
any information  stored  electronica ly in any device  or  media,  including  any hard  copies  made  of such 
information shall be 'deemed' to be a 'document' for purpose of this Act and rules made thereunder and shall 
be accepted in any proceedings thereunder, without further proof or production of the original or any fact state 
therein of which direct evidence would be admissible - section 145(1) of CGST Act. 
36.4 Expert opinion and report of testing of samples 
 
Often department  obtains test report of a sample or gets expert opinion.  Report of Cost Accountant  or 
Chartered Accountant in special audit is also an 'expert opinion'. 
 
Expert  Evidence  under  Evidence  Act - As per section 45 of Indian Evidence Act, 'expert' is a person 
specia ly  ski led  in  particular  f iled  like  foreign  law,  science  or  art  or  identity  of handwriting  or  finger 
expressions. As per section 45 of Evidence Act, opinion of an expert is a 'relevant fact'. Thus, opinion of Cost 
Accountant or Chemical Examiner in his report can be considered while adjudicating an issue. 
In State of Himachal Pradesh  v. Jail Lal AIR 1999 SC 3318, it was held that it has to be shown that an 
expert has made a special study of the subject or acquired a special experience therein, or in other words that 
he is ski led and has adequate knowledge of the subject. - . - The credibility of expert depends on the reasons 
stated  in support  of his  conclusions  and  the  data  and  materials  furnished  which  form the  basis  of his 
conclusions. - . - Expert has to be examined as a witness in Court and has to face cross examination. - . - 
Court can decline to place reliance upon evidence of witness (expert) unsupported by any reasons. 
Cost Accountants are experts authorized by law to do costing of production of goods. Their duly certified 
statements can be acted upon by their clients (assessees). It cannot be said that assessee has mis-declared 
value - CCE v. Asarwa Mills (2015) 319 ELT 216 (SC). 
Basis of Report should be given - In Skanan Hardware (P.) Ltd. v. CC - 1992 (57) ELT 306 (CEGAT), 
it was observed : "A bald reference to the value in show cause notice (without showing the basis on which 
expert valued the goods) does not give any effective opportunity to assessee to rebut or cha lenge the same. 
This is in violation of principles of natural justice." 
Expert should not give his opinion - Chief Chemist has only to give test report and not express opinions to 
guide or bind assessing officers - Pushpanjali Floriculture  Ltd. v. CC 2005 (179) ELT 47 (CESTAT). 
An expert (chemical examiner in this case) has to furnish the result of his tests. It is not his province to give 
opinion on tariff classification  -  N P  Venkataraman  Iyer  -  1986  (23) ELT 471  (CEGAT)  * Danmet 
Chemicals v. CC 1999(112) ELT 844 (CEGAT) * Rane Brake Linings v. CCE (2007) 215 ELT 144 
(CESTAT). * CCE v. Dhariyal Chemicals (2014) 309 ELT 727 (CESTAT). 
Chemical examiner has only to state his expert opinion and not to suggest classification under any particular 
heading - Triton Synthetic Fibres v. CCE 1999(106) ELT 557 (CEGAT) * Warren Laboratories  v. CCE 
1999(114) ELT 447 (CEGAT). 
 
The chemical examiner has to give test report, but he cannot give his opinion about classification of a product - 
Bakelite Hylam Ltd. - 1991 (56) ELT 685 (CEGAT) * CC v. East West Exporters - 1991 (52) ELT 66. 
 
Cross-examination of expert may be permitted - When reliance is placed on the opinion of expert and a 
plea is made for cross-examination of the expert, the expert should be made available norma ly for cross- 
examination. - Tulsyan NEC v. CC 2003 (157) ELT 627 (Mad HC) * Vijayalakshmi v. CCE - 1993 (68) 
ELT 696 (CEGAT) * Ultra Fine Filters v. CCE 2004 (167) ELT 331 (CESTAT). 
In Shalimar Agencies v. CC 2000(120) ELT 166 (CEGAT), it was held that if expert does not appear for