Section 70 of The Central Goods and Services Tax Act, 2017
Section 70. Power to Summon persons to give evidence and produce documents

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 (5 of 1908).

Every such inquiry referred to in sub-section (1) shall be deemed to be a "judicial proceedings" within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860).

Detailed analysis of Section 70 of CGST Act, 2017
The term "summon" is not defined in the CGST Act of 2017, although it is defined in Black's Law Dictionary as "In practice. To serve a summons; to cite a defendant to appear in court to answer a suit which has been begun against him; to notify the defendant that an action has been instituted against him, and that he is required to answer to it at a time and place named."

The term "Proper Officer" is not defined under Section 70(1) of the CGST Act, 2017. Nevertheless, the GST Investigation Wing provided a thorough guideline for the Issuance of summons under Section 70 in "Instruction No. 03/2022-23" dated August 17, 2022. The directive authorizes officers with the level of Deputy or Assistant Commissioner to issue summons under Rule 3 clause (i). Superintendents generally have the authority to issue summons.

Refer Instruction No. 03/2022-23-GST- Investigation at the ending and Entry 4 in Table of Circular No. 3/3/2017 - GST, dated- July 5th, 2017. Section 2(91) of the CGST Act, 2017 defines the term "Proper Officer" as "Proper Officer in relation to any function to be performed under this Act, means the Commissioner or the officer of the central tax who is assigned that function by the Commissioner in the Board". Here we can also refer the case of YASHO INDUSTRIES LIMITED VS UNION OF INDIA (24 June, 2021)(Gujarat High Court)

"14. The submission of Mr.Rastogi that the said assignment of function has to be by way of Notification and not by way of Circular in view of Section 167 of the CGST Act is thoroughly misplaced. Section 167 of the CGST Act pertains to the delegation of powers by the Commissioner exercisable by any authority or officer under the Act to be exercisable also by another authority or officer as may be specified in the Notification.

So far as Section 2(91) is concerned, it pertains to the proper officer in relation to any function to be performed under the CGST Act to be the Commissioner or the officer of Central Tax, who is assigned that function by the Commissioner in the Board. Here the Board means the C/SCA/7388/2021 CAV JUDGMENT DATED: 24/06/2021 "Central Board of Indirect Taxes and Customs" as defined in Section 2(16) of the CGST Act.

Vide the Circular dated 5.7.2017 the said Board namely the Central Board of Excise and Customs in exercise of the powers conferred by Section 2(91) of the CGST Act read with Section 20 of the IGST Act and subject to Section 5(2) of the CGST Act has assigned the officers the functions as that of proper officers in relation to the various Sections of the CGST Act and the Rules made thereunder, and as such the Superintendent of Central Tax has been assigned the function of Section 70(1) of the CGST Act".

The aim of issuing summons is not specified in Section 70(1) of The CGST Act, 2017. Although Section 108(1) of the Customs Act indicates, "Any Central Excise Officer duly empowered by the Central Government in this behalf 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 which such officer is making for any of the purposes of this Act.

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." And Section 14(1) of the Central Excise Act states, "Any Central Excise Officer duly empowered by the Central Government in this behalf 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 which such officer is making for any of the purposes of this Act.

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. " Which conveys an image of the summons aim.

Although, the CGST Act does not specify anything to that effect; yet, if we examine the principles and interpretation of Section 108(1) of Central Excise Act and Section 14(1) of the Customs Act with Section 70(1) of the CGST Act, the proper official to summon within the scope of this act is provided.

Section 70 of the CGST Act does not have any clear say about attending the inquiry proceedings in person or by an authorized agent after summons have been served but Section 14(2) of Central Excise Act says, "All persons so summoned shall be bound to attend, either in person or by an authorized agent, as such officer may direct...." and Section 108(2) of Customs Act says, "All persons so summoned shall be bound to attend either in person or by an authorized agent, as such officer may direct;�."

Here we can refer the case of M/S.Abdulla Yusufji And Sons Petitioner(S) V. Government Of India & 2 (S) (2014 Scc Online Guj12213) (Gujarat High Court) (Oct 9, 2014)

Oral Order:
(Per: Honourable Mr. Justice Akil Kureshi)

1. Petitioner has filed this petition challenging the action of Respondent No. 2-Authority of not allowing the authorized signatory of the petitioner to remain present before such authority in response to summons issued by the said authority under the Central Excise Act, 1944. The petitioner is a partnership firm doing business of selling fertilizers i.e urea. The petitioner has dealership for such purpose. According to the petitioner, the firm is not involved in any illegal sale of urea used for the agricultural purpose to industrial units. However, as per the averments made in the petition itself, the Central Excise Authority had an occasion to inquire into the dealing of one Vijay Mulchandani, proprietor of one Karan Chemicals, Ahmedabad, for alleged diversification of Urea for industrial units. During such inquiry, in the diary of said Vijay Mulchandani, name of the petitioner was found. On such basis, Respondent No. 2 i.e Directorate General of Central Excise Intelligence, Vapi, issued summons dated 25.06.2014 and again on 11.07.2014 Under the said summons issued to the petitioner, it was stated as under:
   "You are hereby Summoned under Section 14 of Central Excise Act, 1944 to appear before me in person or by any person, duly authorized by you, on the 2 nd day of July, 2014 at 15.30 hrs. in my office at the address given above, to give evidence or to make statement truthfully on such matters concerning the inquiry as may be asked and to produce the documents and things mentioned in the schedule below for any examination."
    
2. The case of the petitioner is that the authorized representative of the partnership firm did appear before the authority. However, the authority insisted on personal presence of the partnership firm. According to the petitioner, he is opposed to conduction of the summons itself since it was directed that the petitioner may appear in person or duly authorized person may appear on the appointed day. It was in that background, as noted above, prayers are made.
    
3. In our view, no interference is called for on the summons issued by Respondent No. 2 in exercise of powers under Section 14 of the Central Excise Act, 1944. Sub section (1) of Section 14 of the Central Excise Act, 1944, inter alia, authorizes the authority of Central Excise Officer duly empowered by the Central Government 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 which such officer is making for any of the purposes of the Act. As per Sub section (2) of Section 14 of the Central Excise Act 1944, all persons upon summons shall be bound to attend either in person or by an authorized agent, as such officer may direct and all persons so summoned, would be bound to state the truth of any subject respecting which their examination or to make statement and to produce such document and other as may be required.
    
4. By very nature of thing, therefore, summons under Sub section (1) of Section 14, is for recording statement or for production of document. As per Sub section (2) of Section 14, the person so summoned is bound to state the truth. Therefore, if the authorized officer is of the opinion that presence of person of the partnership firm is necessary for recording truthful statement at the interim stage inquiries are pending, no interference is called for.
    
5. In the result, petition is dismissed.
    

We may infer from the aforementioned instance that, even though the summons said that you must present in person or by a designated agent, it is ultimately up to the authorized officer. The individual to whom the summons have been issued shall come before the officer if the authorized officer believes that the person's presence is required to record an honest statement.

Will the Summoned person is allowed to have a advocate with him? Here we can refer the case of Saurabh Mittal V. Union Of India, Department Of Revenue And Others(2022 Scc Online Del 547, 2022 DLT 287 421) (Delhi High Court) (Feb 11, 2022)

3.(e) Issue appropriate writ(s), order(s) or direction(s) to the Respondents in furtherance of the observations; order(s) and direction(s) issued by the Hon'ble Supreme Court inter alia, vide Order dated 02.12.2020 passed in SLP (Crl.) No. 3543 of 2020 titled as 'Paramvir Singh Saini v. Baljit Singh' to the effect that all proceedings carried out by Respondent no. 1 & 2 including those in relation to the recording of statements etc. in terms of the Notice(s)/Summon(s) issued under Section 50 PMLA in ECIR MBZO-1/66/2021 to be audio/videographed in the presence of Petitioner's lawyer at a visible distance (beyond audile range) inter-alia by way of installation of appropriate CCTV cameras.

16. In Sandeep Jain v. Additional Director DRI (Directorate of Revenue Intelligence) (Review Pet. 387/2019 in W.P. (C) 9561/2019), in paragraphs 15-18, it is observed and held as under:

15. It is clear that the directions, in Jugal Kishore Samra, were issued in the special facts and circumstances of that case. A reading of the order, dated 16th April, 2012 supra, in Birendra Kumar Pandey, too, reveals that permission, to have an advocate's presence at visible, but not audible, distance, during the recording of the statement under Section 108 of the Act, was permitted because the petitioners, in that case, were apprehensive that coercive attempts could be made to extort confessions from them.

16. No doubt, if a litigant, in a particular case, is able to produce credible material to indicate a real and live apprehension, of the possibility of coercive methods being employed, while recording of his statement under Section 108 of the Act, the court can always permit the presence of an advocate, at visible, but not audible, distance, during the course of recording of the statement.

17. The apprehension of coercive measures being employed is, however, required to be real and live, so that the grant of permission to have the presence of an advocate, at visible, but not audible, distance, which is an exception, does not become the rule.

18. A person, to whom summons have been issued under Section 108 of the Act, cannot, as a matter of right, seek presence of an advocate, at any distance, during the course of recording of his statement, by merely reciting, as a mantra as it were, that he apprehends that of coercive measures may be employed during the course of recording of his statement. The court has to be convinced that the facts of the case justify such an apprehension. Else, the Supreme Court has held, as far back as in Poolpandi v. Superintendent, Central Excise, as under:

11. We do not find any force in the arguments of Mr. Salve and Mr. Lalit that if a person is called away from his own house and questioned in the atmosphere of the customs office without the assistance of his lawyer or his friends his constitutional right under Article 21 is violated����

The purpose of the enquiry under the Customs Act and the other similar statutes will be completely frustrated if the whims of the persons in possession of useful information for the departments are allowed to prevail. For achieving the object of such an enquiry if the appropriate authorities be of the view that such persons should be dissociated from the atmosphere and the company of persons who provide encouragement to them in adopting a non-cooperative attitude to the machineries of law, there cannot be any legitimate objection in depriving them of such company.

The relevant provisions of the Constitution in this regard have to be construed in the spirit they were made, and the benefits thereunder should not be "expanded" to favor exploiters engaged in tax evasion at the cost of public exchequer. Applying the just, fair and reasonable test we hold that there is no merit in the stand of appellant before us."
24. As far as the relief prayed for by the Ld. senior counsel for the petitioner with regard to the audio/videography of the proceedings to be carried out by the respondents, in the presence of petitioner's lawyer at a visible distance, beyond audible range, inter-alia, by way of installation of appropriate CCTV cameras, is concerned, the same is untenable in law as in the instant case, the petitioner has failed to raise any reasonable basis to apprehend coercion by the respondents herein against the petitioner.

It is clear that such directions are to be issued in special facts and circumstances of that case. Perusal of Vijay Sajnani v. Union of India [2012 SCC OnLine SC 1094] and Birendra Kumar Pandey v. Union of India (W.P. (Crl.) 28 of 2012, Order dated 16.04.2012), relied upon by Ld. senior counsel for the petitioner shows that the permission to have an advocate present at visible, but not audible, distance, during the proceedings was permitted because the petitioners therein, apprehended that coercive attempts could be made to extort confessions from them, which is not the case here.

A person, to whom summons have been issued cannot as a matter of right seek presence of an advocate at visible, but not audible distance and the said relief is to be granted sparingly, in exceptional circumstances, where it appears prima facie that the apprehension of the person is sincere and bonafide.

27. Therefore, in view of the discussions mentioned hereinabove, the present petition is dismissed and CRL.M.A. 2746/2022 is also disposed of accordingly.

We therefore draw the conclusion from the case that the court can always allow the presence of an advocate during the course of recording a statement at a visible but not audible distance if the petitioner is able to indicate a real and live apprehension of the possibility of a coercive method being employed.

What does Judicial Proceedings stand for referred in Section 70 of The CGST Act, 2017?
The term "Judicial Proceedings" has not been defined in the statute, but we are bound to interpret the term "Judicial Proceedings" within the boundaries of Section 193 and Section 228 of Indian Penal Code, 1860 (45 of 1860).

Section 193- Punishment for False evidence
"Whoever intentionally gives false evidence in any of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine."

Section 228- Intentional insult or interruption to public servant sitting in judicial proceeding.
"Whoever intentionally offers any insult, or causes any interruption to any public servant, while such public servant is sitting in any stage of a judicial proceeding, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

Though, it has not been defined in The CGST Act, 2017 but it has been defined in Section 2(i) in The Code of Criminal Procedure, 1973 which says "judicial proceeding" includes any proceeding in the course of which evidence is or may be legally taken on oath.

What does the term "inquiry" stand for under CGST Act of 2017? Is the term "Inquiry" synonymous to the term "Proceedings" under Section 6(2)(b) of CGST Act?
Here to clear this confusion we can refer G.K. Trading Company Vs Union Of India And 4 Others (WRIT TAX No. - 666 of 2020) (Allahabad High Court)

10. The words "subject-matter, "proceedings" and "inquiry" have not been defined either under the State G.S.T. Act or the Union Territory G.S.T. Act or the C.G.S.T. Act. Therefore, these words have to be interpreted in the context of the aforesaid Acts. The word "inquiry" in Section 70 has a special connotation and a specific purpose to summon any person whose attendance may be considered necessary by the proper officer either to give evidence or to produce a document or any other thing.

It cannot be intermixed with some statutory steps which may precede or may ensue upon the making of the inquiry or conclusion of inquiry. The process of inquiry under Section 70 is specific and unified by the very purpose for which provisions of Chapter XIV of the Act confers power upon the proper officer to hold inquiry. The word "inquiry" in Section 70 is not synonymous with the word "proceedings", in Section 6(2)(b) of the U.P.G.S.T. Act/ C.G.S.T. Act.

So from the above case we conclude that the word "inquiry" in Section 70 and the word "Proceedings" in Section 6(2)(b) of The CGST Act, 2017 are not synonymous to each other.

Other analysis related to Section 70 of CGST Act, 2017 with Judicial Decisions
What is the Evidentiary value of statements recorded under summons proceedings under Section 70 of CGST ACT, 2017? Can we invoke Section 25 of Indian Evidence Act, 1872?

Section 25 of the Indian Evidence Act says any Confessional Statement made to any police officer in his custody will not be considered as evidence.

To support this we can refer to the case of P.V. Ramana Reddy vs Union Of India on 18 April, 2019

13. However, the propositions of law that could be culled out from the aforesaid decisions, can be summed up in brief as follows: AIR 1966 SC 1746 AIR 1970 SC 940 AIR 1970 SC 1065 1970 (1) SCC 847 1976 (2) SCC 302 1992 (3) SCC 259 21 VRS,J & PKR,J WP No.4764 & Batch
i) that officers under various tax laws such as the Central Excise Act etc., are not police officers to whom Section 25 of the Indian Evidence Act 1872 would apply.

So we can conclude from the above case that any statement recorded under summons proceedings before the proper officer will be considered as evidence.

Are Proceedings and Inquiry are Independent in nature under the provisions of CGST ACT, 2017?

Yes, They are independent in nature. To support this contention we can refer the case of M/S. Siddhi Vinayak Trading Co. Vs Union Of India And 2 Others(2021-VIL-155-ALH)(Gujarat High Court) (23 February, 2021)

It appears from the perusal of the order dated 8th September, 2020 that the show cause notice had been served under Section 74(2) of the Act and the date was fixed for submitting explanation/objections by the petitioner. The order impugned dated 8th September 2020 records that the petitioner did not appear before the proper Officer.

As the proceedings for determination and levy of tax and penalty had been initiated by the State Tax Authority, this Court does not find substance in the challenge to the jurisdiction of respondent no. 2 to pass order for determination of tax and penalty to levy the same upon the petitioner, in view of the circular dated 5.10.2018.

In the considered opinion of the Court, the initiation of the proceeding for imposition of tax and penalty was with the issuance of the notice under Section 74 as contained in Chapter XV of UPGST Act and the inquiry under Section 70 of the Act was independent."

Is it compulsory to install CCTV Cameras where the Interrogation takes place?
Definitely, CCTV cameras must be installed in areas where questioning takes place in order to protect the human rights of the individual delivering the statement. The following directive is given in the case of Paramvir Singh Saini Vs Baljit Singh (2nd December 2020) (The Supreme Court of India)

19. The Union of India is also to file an affidavit in which it will update this Court on the constitution and workings of the Central Oversight Body, giving full particulars thereof. In addition, the Union of India is also directed to install CCTV cameras and recording equipment in the offices of:

1. Central Bureau of Investigation (CBI)
2. National Investigation Agency (NIA)
3. Enforcement Directorate (ED)
4. Narcotics Control Bureau (NCB)
5. Department of Revenue Intelligence (DRI)
6. Serious Fraud Investigation Office (SFIO)
7. Any other agency which carries out interrogations and has the power of arrest.

As most of these agencies carry out interrogation in their office(s), CCTVs shall be compulsorily installed in all offices where such interrogation and holding of accused takes place in the same manner as it would in a police station".

Rights and Duties of the Assessee if the assessee receives a summon under Section 70 of the CGST Act:
Duty Bound to appear before the proper officer:
Assessee is bound to appear before the Proper officer of the Central Tax, in case the assessee failed to appear before the officer without any reasonable ground then the assessee can be prosecuted under various sections of IPC such as Section 174 which provides with Simple Imprisonment which may be extended for a term which may extend to one month or with fine which may extend to five hundred rupees, or with both for not attending in person or by an agent at a certain place and time in obedience to a summons, notice, order or proclamation proceeding from any public servant legally competent and intentionally omits to attend at that place or time.

In addition to the above monetary penalty of Rs. 25,000 under Section 122(3)(d) of The CGST Act, 2017. If there is any exigency on the part of assessee the assessee should inform the proper officer with reasonable grounds.

Duty Bound to give proper evidence:
The assessee is bound to give proper evidence related to the case, if he is found with any willful misstatement or suppression of facts to evade monetary penalty equal to Rs. 10,000 or the tax due whichever is higher from such assessee under Section 122(2)(b) of The CGST Act, 2017 and can also be prosecuted under Section 193 and Section 175 of IPC.

Right of Retraction:
The assessee has the right to withdraw the previous statement and submit the correct and new statement as soon as feasible after making the incorrect statement.

Right to refresh memory:
Giving proper evidence and reference is more important than giving an inaccurate statement unknowingly. The right to refresh memory is allowed by Section 159 of The Indian Evidence Act, 1872.

Right to remain silent:
The assessee has the right to remain silent which has been provided by Article 20(3) of The Constitution of India if he thinks that the evidence can be used as witness against himself.

The right to cross examination:
If the assessee believes the officer is distorting facts by referring to statements made by other parties, the assessee has the right to cross-examine the veracity of such assertions. We can refer to the case of M/S Andaman Timber Industries vs Commr. Of Central (CIVIL APPEAL NO. 4228 OF 2006) (Supreme Court) (2nd September 2015) where the judgement said "We have heard Mr. Kavin Gulati, learned senior counsel appearing for the assessee, and Mr. K. Radhakrishnan, learned senior counsel who appeared for the Revenue.

According to us, not allowing the assessee to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses.

Even when the assessee disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted, and the aforesaid plea is not even dealt with by the Adjudicating Authority.

As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static.

It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them". The rejection of the right to cross examination will be a violation of the principle of natural justice.

Right to refer to proper books of accounts and documents:
The assessee has the right to refer to proper books of accounts to make an accurate statement that goes on record because any statement given to the officers will be considered as evidence.

Award Winning Article Is Written By: Mr.Antik Saha

Authentication No: OT329890672627-25-1023