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Section 70 Power to summon persons to give evidence and produce documents - GST Ready Reckoner - GSTExtract Power to summon persons to give evidence and produce documents Introduction Section 70 Read With Rule 132 deals with exercise of powers to issue summons for giving evidence and for production of documents or any other thing. The proper officer under this Act shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry in the same manner, as provided in the case of a civil court under the provisions of the Code of Civil Procedure,1908. [ Section 70(1)] Analysis In any inquiry which such officer is making for any of the purposes of this Act, the Proper officer shall have power to summon: any person, whose attendance is considered necessary, either to give evidence or to produce a document or any other thing. in any inquiry in the same manner As provided in the case of a civil court under the provisions of the Code of Civil Procedure, 1908 Every such inquiry referred to in sub-section (1) of section 70 shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code. It would be helpful to read and be familiar with the exact nature of responsibility of acceptance of service of summons and of making statements in response to a summons. At the same time, Article 20(3) of our Constitution prohibits from a person being made to witness against himself. Therefore, avoidance of service of summons is unlawful but abstinence from making statements is not. Understanding the legality of these matters will assume significance in attending to such matters of inquiry before a judicial officer. Scope of word Summon under Sec 70 states that in case of Any Inquiry Authorised Officer is not empowered under Sec 70 to retain the documents for which summon were issued. It has been held by in T.T.V Dinkaran v. Enforcement Officer 1995 (80) 1995 (7) TMI 184 - MADRAS HIGH COURT held that where summon did not mention the nature of investigation therein, it will be valid since mentioning the details about investigation may alter the person concerned to manipulate his record. It may be helpful to read sections 24 to 30 of Indian Evidence Act, 1872 and note the jurisprudence available in this manner of gathering evidence. Person making the statement needs to establish that such statement was made under certain circumstances that it is NOT to be relied upon in further proceedings. Statements made that are considered NOT reliable by the person making it must lead evidence to support the assertion. It is permissible to presume statements are reliable unless withdrawn at the earliest opportunity in the remainder of the proceedings. Statements recorded under section 70 alone cannot form reliable evidence to support demand for tax in SCN. Experts also hold the view that since Proper Office will NOT file a Police Report (also called charge sheet ) under 173 of Criminal Procedure Code but only a complaint under section 190(1)(a) of Criminal Procedure Code, the proceedings WILL NOT enjoy the benefit of section 24 to 30 of Evidence Act. Reference may be had to Illias v. Collector of Customs 1968 (10) TMI 48 - SUPREME COURT contrasted with Ramesh Chandra Mehta v. State of WB 1975 (2) TMI 115 - SUPREME COURT . After recording statement, the person making the statement cannot be implicated as it is contrary to the Constitutional guarantee in article 20(3) without the possibility being made known him. Reference may be had to applicability of Criminal Procedure Code in the absence of procedure on conducting trial in Adani Enterprises Ltd. Ors. v. UoI Ors. 2019-TIOL-2408-HC-MUM-CUS. Comparative review Name of Statute Central Excise Act 1944 Finance Act 1994 Custom Act 1962 State Vat Laws Section Reference Sec 14 Sec 14 of Central Excise Act read with Sec 83 of Finance Act 1994 Sec 108 Similar powers are conferred under the State Vat laws. Circumstance when the proper officer can issue summons Section 70 of CGST/ SGST Act gives powers to a duly authorized CGST/SGST officer to call upon a person by issuing a summon to present himself before the officer issuing the summon to either give evidence or produce a document or any other thing in any inquiry which an officer is making. A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. Responsibilities of the person so summoned A person who is issued summon is legally bound to attend either in person or by an authorized representative and he is bound to state the truth before the officer who has issued the summon upon any subject which is the subject matter of examination and to produce such documents and other things as may be required. Consequences of non- appearance to summons The proceeding before the official who has issued summons is deemed to be a judicial proceeding. If a person does not appear on the date when summoned without any reasonable justification, he can be prosecuted under section 174 of the Indian Penal Code (IPC). If he absconds to avoid service of summons, he can be prosecuted under section 172 of the IPC and in case he does not produce the documents or electronic records required to be produced, he can be prosecuted under section 175 of the IPC. In case he gives false evidence, he can be prosecuted under section 193 of the IPC. In addition, if a person does not appear before a CGST/ SGST officer who has issued the summons, he is liable to a penalty up to ₹ 25,000/- under section 122(3) (d) of CGST / SGST Act . Format of Summon Circular No. 128/47/2019-GST dated 23.12.2019 Guidelines on issuance of summons under section 70 of the central goods services tax act, 2017 [ Instruction No. 03/2022-23 (GST-Investigation) Dated 17.08.2022 ] Precautions to be observed while issuing summons The following precautions should generally be observed when summoning a person: - A summon should not be issued for appearance where it is not justified. The power to summon can be exercised only when there is an inquiry being undertaken and the attendance of the person is considered necessary. Normally, summons should not be issued repeatedly. As far as practicable, the statement of the accused or witness should be recorded in minimum number of appearances. Respect the time of appearance given in the summons. No person should be made to wait for long hours before his statement is recorded except when it has been decided very consciously as a matter of strategy. Preferably, statements should be recorded during office hours; however, an exception could be made regarding time and place of recording statement having regard to the facts in the case.
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