Independent Witness and videography in search Under section 67 of the GST Act

[HimangshuKumar Ray]

67(10) of GST Act with relevant provision of BNSS, 2023, and CBIC instruction no No. 01/2020-21(GST-Investigation) dated 02.02.2021  says about two independent witness and videography during search, seizure. My question is that can the employee be the witness ? Patna HC in Shri Sai Food and Rajasthan HC in Kirishna Oil ... case held that employee can not be the independent witness. Is there any case laws of GST and previous regime in this context. and also judgements on Videography context.

 

[Sadanand Bulbule]

The bottom line of the judgment and the CBIC Circular[supra] is to ensure fair and true search proceedings. In the absence of independent witnesses, the proceedings are rendered illegal and contrary to Section 67[10] of the CGST Act. Absence of vidiography further weakens the evidentiary value of such search.

Refer; Paramvir Siingh Sainin Vs. Balaji Singh & Ors 2020 (12) TMI 1222 - SUPREME COURT on videography during search operations.

[HimangshuKumar Ray]

thank you sir, Is there any definition of Independent Witness in earlier regime  and any other case laws except mentioned by me and you.

[Sadanand Bulbule]

 

• Independent witness = one who is neutral, respectable, not habitual, and preferably a local inhabitant.
• Presence of such witness strengthens credibility of panchnama/seizure.
• Absence does not ipso facto vitiate proceedings, but courts scrutinize departmental evidence with greater caution.

 

AI Summary

Independent witness requirement for searches preserves fairness; employee witnesses undermine neutrality and videography reinforces evidentiary value. Section 67(10) of the GST Act and CBIC guidance require independent witnesses and videography in searches to protect fairness and evidentiary integrity. An independent witness must be neutral and not habitually associated with the parties; courts have held employees do not qualify. Videography strengthens the credibility of panchnama and seizures. Absence of witnesses or video does not automatically invalidate proceedings but invites stricter judicial scrutiny and may undermine evidentiary weight.