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 proving, 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 Appellate Authority and Appellate 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 challenge 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
53 (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 – followed 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 – followed in Satpushp Steels v. CCE 2006 (196) ELT 105 (CESTAT).
Collecting cheques by force during search – Often departmental authorities collect cheques from assessee by force by threatening at time of preventive checks. In Abhishek Fashions v. UOI (2008) 15 STT 291 (GujHC DB), it was held that there is no provision to collect such cheques and department was asked to return the cheques forthwith.