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 specially skilled in particular filed 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 skilled 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 challenge 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 normally 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 cross examination, either his appearance should be forced or evidence tendered by him should be discarded.