Prosecution
s 99
Open ↗No prosecution for an offence under this Act shall be instituted except by or with the written consent of the Public Prosecutor.
Source
Goods and Services Tax Act 2014 Part XII — TRIALS AND PROCEEDINGS
Jurisdiction to try offences
s 100
Open ↗Notwithstanding any written law to the contrary, a Sessions Court shall have jurisdiction to try any offence under this Act and to impose the full punishment for the offence.
Conviction under any other law
s 101
Open ↗Nothing in this Act shall prevent the prosecution, conviction and punishment of any person according to the provisions of any other written law for the time being in force.
Burden of proof
s 102
Open ↗If in any prosecution in respect of any goods seized for non-payment of tax or for any cause of forfeiture or for the recovery of any penalty under this Act, any dispute arises whether tax has been paid in respect of the goods, or whether the supply of goods or services or importation of goods is exempt from or not liable to any tax chargeable under this Act or is subject to tax at the rate of zero per cent or any value upon which tax is chargeable under this Act, or any amount of tax chargeable under this Act is subject to any deduction or offset or any amount should be deducted as input tax, or whether the goods or services had been lawfully supplied or the goods had been lawfully imported, or concerning the place from where those goods were brought, the burden of proof of every such case shall lie on the accused in the prosecution or the person making the claims.
Evidential provisions
s 103
Open ↗(1) In any proceedings under this Act any statement purporting to be signed by the Director General or an officer authorized by him which forms part of or is annexed to the information, complaint or statement of claim, shall be prima facie evidence of the facts stated therein. (2) A transcript of any particulars contained in a return or other document relating to tax, if it is certified under the hand of the Director General or an officer authorized by him to be a true copy of the particulars, shall be prima facie evidence of the facts stated therein. (3) No statement made or document produced by or on behalf of any person shall be inadmissible in evidence against the person in any proceedings against him to which this section applies, by reason only of the fact that he was or may have been induced to make the statement or produce the document by any inducement, promise or threat made by any person having any official duty under, or being appointed for the due administration of, this Act. (4) Nothing in this Act shall affect the operation of Chapter IX of Part III of the Evidence Act 1950. (5) For the purposes of section 83, where in any proceedings it is proved that any false statement or entry has been made in any return rendered under this Act by or on behalf of any person or in any books of account or records of any person— (a) the person shall be presumed, until the contrary is proved, to have made the false statement or entry or to have caused the false statement or entry to be made or to have allowed it to be made with intent to evade the payment of tax or to obtain a refund of tax to which the person is not entitled, as the case may be; and (b) any other person who made any false statement or entry shall be presumed, until the contrary is proved, to have made the false statement or entry with intent to assist the first-mentioned person to evade the payment of tax or to obtain a refund of tax to which he is not entitled. (6) Where any officer of goods and services tax has obtained any document or other evidence in exercise of his powers under this Act, the document or copy of the document or other evidence, as the case may be, shall be prima facie evidence of the facts stated therein, notwithstanding anything to the contrary in any written law. (7) Where any document which is to be used in any proceedings against any person for an offence under this Act is in a language other than the national language or English language, a translation of the document into the national language or English language shall be admissible in evidence where the translation is accompanied by a certificate of the person who translated the document setting out that it is an accurate, faithful and true translation and the translation had been done by the person at the instance of any officer of goods and services tax. (8) Subsection (7) shall apply to a document which is translated, regardless of whether the document was made in or outside Malaysia, or whether the translation was done in or outside Malaysia, or whether possession of the document was obtained by any officer of goods and services tax in or outside Malaysia.
Evidentiary value of copies of electronic notice
s 104
Open ↗(1) For the avoidance of doubt, any electronic notice or any electronic record of an electronic notice or any copy or print out thereof shall not be inadmissible in evidence merely on the basis that it was filed, lodged or transmitted through the electronic service, without the delivery of any equivalent document or counterpart in paper form. (2) Notwithstanding any other written law, in any proceedings under this Act, any electronic notice or any electronic record of an electronic notice or any copy or print out thereof which is— (a) certified by the Director General to contain all or any information filed, lodged or transmitted through the electronic service in accordance with this Part; and (b) duly authenticated in the manner specified in section 168 or is otherwise authenticated in the manner provided in the Evidence Act 1950 for the authentication of document produced by computer, shall be prima facie evidence of the facts stated therein.
Evidence by certificate, etc.
s 105
Open ↗(1) Any certificate signed by the Director General stating that— (a) a person was or was not, at any date, registered under this Act; (b) any return has not been furnished or had not been furnished at any date; (c) any tax shown as due in any return or assessment has not been paid; (d) any penalty and the amount thereof shown as due from a person named therein; or (e) any public ruling made under section 76 or advance ruling made under section 77, shall be prima facie evidence of the facts stated therein without proof of the signature to the certificate. (2) In any proceedings in respect of any offence under this Act in which the existence, description, classification, composition, quantity, quality or value of, or any other matter in relation to, any movable goods returned, sold or destroyed under section 86 is in question, any document produced by the prosecution purporting to be a certificate in respect of any of the matter given and signed by— (a) an “analyst” within the meaning of subsection 107(3); (b) a senior officer of goods and services tax; or (c) any person, regardless whether or not he is a public officer, authorized by or on behalf of the Minister either generally or in any particular case, for the purposes of this section, shall be admissible in evidence and its conclusiveness shall not be challenged on the ground that the movable goods in respect of which the certificate is given has not been produced before the court either in part or in entirety, and it shall be evidence of its contents, including the facts stated therein, without proof of the signature to the certificate.
Proportional examination or testing of goods seized to be accepted by courts
s 106
Open ↗(1) When any goods liable to seizure under the provisions of this Act have been seized, it shall be sufficient to open and examine only five per centum of each description of the package or receptacle in which the goods are contained. (2) If it is necessary to test any goods seized under this Act, it shall be sufficient to test only a sample not exceeding five per centum in volume or weight of the goods examined under subsection (1). (3) The court shall presume that the goods contained in the unopened packages or receptacles are of the same nature, quantity and quality as those found in the similar packages or receptacles which have been opened.
Production of a certificate of analysis
s 107
Open ↗(1) In any prosecution under this Act, a certificate of analysis purporting to be under the hand of an analyst shall, on production thereof by the prosecutor, be sufficient evidence of the facts stated therein unless the accused requires that the analyst be called as a witness, in which case he shall give notice thereof to the prosecutor not less than three clear days before the commencement of the trial: Provided always that in any case in which the Public Prosecutor intends to give in evidence any certificate of analysis he shall deliver a copy thereof to the accused not less than ten clear days before the commencement of the trial. (2) Analysts are bound to state the truth in the certificate of analysis under their hands. (3) For the purposes of this section, “analyst” means— (a) a person employed as a Chemist in the Department of Chemistry, or as a Chemist or Assistant Chemist at the Institute for Medical Research; (b) a Senior Chemist in the Department of Agriculture; (c) a person employed as a Chemist or Geologist in the Department of Minerals and Geoscience; (d) any chemist in the employment of the Government of Malaysia or Singapore; (e) any other person or class of persons who is or are declared by the Minister charged with responsibility for the Department of Chemistry, by notification in the Gazette, to be an analyst or analysts; (f) any police officer or officer of customs who is declared by the Minister, by notification in the Gazette, to be an analyst; (g) any person appointed by the Minister under section 399 of the Criminal Procedure Code to be a Document Examiner; (h) any Inspector of Weights and Measures appointed under any written law relating to weights and measures; and (i) any person or class of persons who is or are declared by the Minister, by notification in the Gazette, to whom the provisions of this section shall apply. (4) If an analyst is called by the accused under subsection (1), he shall be called at the expense of the accused unless the court otherwise directs. (5) For the purposes of subsection (3), “Minister” means the Minister responsible for the matter in connection with which the reference is made.
Proof as to registration or licensing of vessel and conveyance in Malaysia or Singapore
s 108
Open ↗Where in any prosecution under this Act, it is relevant to ascertain particulars as to the registration or licensing of any vessel or conveyance registered or licensed in any port or place in Malaysia or Singapore, a certificate purporting to be signed by the officer responsible under any written law in Malaysia or in Singapore for the registration or licensing shall be prima facie evidence as to all particulars concerning the registration or licensing contained therein, and the burden of proving the incorrectness of any particulars stated in the certificate shall be on the person denying the same.
Proof as to tonnage or build of a craft
s 109
Open ↗(1) Where in any prosecution under this Act, it is relevant to ascertain the tonnage or build or any other particulars descriptive of the identity of a craft, and if any of these particulars relating to the identity of the craft is in question, then any document produced by the prosecution purporting to be a certificate in respect of any such matter given and signed by any officer responsible for such certificate under any written law shall be prima facie evidence of the facts stated therein without proof of the signature to the certificate. (2) This section shall apply notwithstanding anything contained in any other written law or rule of evidence to the contrary.
Proof as to accuracy of a metre or other device for measuring petroleum
s 110
Open ↗Where in any proceedings under this Act, it is necessary to prove the accuracy of a metre or any other device for measuring petroleum, a certificate purporting to be signed by any officer responsible under any written law for the measurement shall be prima facie evidence of the facts stated therein.
Imprisonment for non-payment of fine
s 111
Open ↗Notwithstanding the provisions of the Criminal Procedure Code, the period of imprisonment imposed by any court in respect of the non-payment of any fine under this Act, or in respect of the default of a sufficient distress to satisfy any such fine, shall be such period of such description, as in the opinion of the court will satisfy the justice of the case, but shall not exceed in any case the maximum fixed by the following scale: Where the fine The maximum period does not exceed five thousand two months ringgit exceeds five thousand ringgit but four months does not exceed ten thousand ringgit exceeds ten thousand ringgit but six months does not exceed twenty thousand ringgit with two additional months for every ten thousand ringgit after the first twenty thousand ringgit of the fine until a maximum period of six years is reached.
Manner of seizure not to be enquired into on trial before court or on appeal
s 112
Open ↗In any trial before any court or in any proceedings on appeal, relating to the seizure of goods subject to forfeiture under this Act, the court shall proceed to the trial or hear the appeal on the merits of the case only, without enquiring into the manner or form of making any seizure, except in so far as the manner and form of seizure may be evidence on the merits.
Obligation of secrecy
s 113
Open ↗(1) Except as provided under section 114, the name, identification card number, passport number, address of an informer or any other information which can lead to identity of the informer and the substance of the information received from an informer shall be kept secret and shall not be disclosed by any officer of goods and services tax or any person who in the ordinary course of his duties comes into possession of or has control of or access to the information to any person except the designated officer of goods and services tax authorized by the Director General. (2) Any person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding seven years or to a fine not exceeding one hundred thousand ringgit or to both.
Protection of informers from discovery
s 114
Open ↗(1) Except as hereinafter provided, no witness in any civil or criminal proceedings shall be obliged or permitted to disclose the name, address or any information of an informer or the substance of the information received from him or to state any matter which might lead to his discovery. (2) If any books, documents or papers which are in evidence or liable to inspection in any civil or criminal proceedings whatsoever contain any entry in which any informer is named or described or which might lead to his discovery, the court shall cause all the passages to be concealed from view or to be obliterated so far only as may be necessary to protect the informer from discovery. (3) If in the trial for any offence under this Act the court after full enquiry into the case believes that the informer wilfully made in his complaint a material statement which he knew or believed to be false or did not believe to be true, or if in any other proceedings the court is of the opinion that justice cannot be fully done between the parties thereto without the discovery of the informer, it shall be lawful for the court to require the production of the original complaint, if in writing, and permit enquiry, and require full disclosure, concerning the informer.
Forfeiture and release of goods liable to seizure
s 115
Open ↗(1) All goods liable to seizure under this Act shall be liable to forfeiture and all forfeited goods shall be disposed of in accordance with the direction of the Director General and any revenue collected is to be paid into the Federal Consolidated Fund. (2) Notwithstanding subsection (1), the Director General or any senior officer of goods and services tax may, where he deems fit, at any time direct any goods liable to seizure under this Act to be released to the person from whose possession, custody or control the goods was seized.
No costs or damages arising from seizure to be recoverable unless seizure without reasonable or probable cause
s 116
Open ↗No person shall in any proceedings before any court in respect of the seizure of any goods seized in exercise or the purported exercise of any power conferred under this Act, be entitled to the costs of the proceedings or to any damages or other relief other than an order for the return of the goods or the payment of the value unless the seizure was made without reasonable or probable cause.
Court to order disposal of goods seized
s 117
Open ↗(1) An order for the forfeiture or for the release of anything liable to forfeiture under this Act shall be made by the court before which the prosecution with regard thereto has been held, and an order for the forfeiture of goods shall be made if it is proved to the satisfaction of the court that an offence under this Act has been committed, and that the goods were the subject matter of or were used in the commission of the offence notwithstanding that no person may have been convicted of the offence. (2) The amount secured under paragraph 86(1)(a) or (b) or the amount realized by sale under paragraph 86(1)(c) shall be forfeited by the court if it is proved to the satisfaction of the court that an offence under this Act has been committed and that the movable goods in respect of which the amount was secured or realized by sale, as the case may be, was the subject matter of or was used in the commission of the offence notwithstanding that no person may have been convicted of the offence. (3) All goods forfeited shall be delivered to an officer of goods and services tax and shall be disposed of in accordance with the directions of the Director General and any revenue collected to be paid into the Federal Consolidated Fund.
Goods seized in respect of which there is no prosecution, or the proceeds of sale thereof, are forfeited if not claimed within one month
s 118
Open ↗(1) If there be no prosecution with regard to any goods seized under this Act, the goods or the proceeds of sale of the goods which are held pursuant to paragraph 86(1)(c) shall be taken and deemed to be forfeited at the expiration of one calendar month from the date of seizure of the goods unless, before the expiration— (a) a claim to the goods or the proceeds of sale of the goods is made under subsection (2); (b) a written application is made for the return of the goods under paragraph 86(1)(a) or (b); or (c) the goods are returned under paragraph (a) or (b). (2) Any person asserting that he is the owner of the goods or the proceeds of sale of the goods, as the case may be, and that they are not liable to forfeiture may, personally or by his agent authorized in writing, give written notice to any senior officer of goods and services tax that he claims the same. (3) On the expiration of the period mentioned in subsection (1), or, if a decision is made earlier that there be no prosecution with regard to the goods, on the making of the decision the senior officer of goods and services tax shall, if the goods or the proceeds of sale of the goods are not taken and deemed to be forfeited under the subsection, refer the claim to the Director General who may direct that the goods or the proceeds of sale of the goods or the security furnished under paragraph 86(1)(a) or (b), as the case may be, be released or may direct the senior officer, in the form and manner as the Director General may determine to refer the matter to a Sessions Court. (4) The Sessions Court shall issue a summons requiring the person asserting that he is the owner of the goods or the proceeds of sale of the goods, and the person from whom the goods were seized, to appear before him, and upon their appearance or default to appear, due service of the summons being proved, the Sessions Court shall proceed to the examination of the matter, and upon proof that an offence against this Act has been committed and that the goods were the subject matter, or were used in the commission of the offence, shall order the goods or the proceeds of sale of the goods or the amount secured under paragraph 86(1)(a) or (b), as the case may be, to be forfeited, or in the absence of such proof, may order the release of the goods or the proceeds of sale of the goods or the security furnished under paragraph 86(1)(a) or (b), as the case may be. (5) In any proceedings under subsection (4), section 102 shall apply to the person asserting that he is the owner of the goods or the proceeds of sale of the goods and to the person from whom they were seized as if the owner or person had been the accused in a prosecution under this Act.
Vesting of forfeited goods in the Federal Government
s 119
Open ↗(1) Where any goods is forfeited under this Act, the goods shall vest in the Federal Government free from any right, interest or encumbrance of any person except a right, interest or encumbrance which is held by a purchaser in good faith for valuable consideration and which is not otherwise null and void under any written law. (2) Where any person who holds any encumbrance to which the goods is subject claims that he holds the encumbrance as a purchaser in good faith for valuable consideration and that the encumbrance is not otherwise null and void under any written law, and the Federal Government disputes such claim, the Public Prosecutor may apply to the Sessions Court to determine the question and the court shall determine the question after giving an opportunity to be heard to the person holding the encumbrance and hearing the reply of the Public Prosecutor to any representations which may be made before that court by the person holding the encumbrance. (3) Where any goods is vested in the Federal Government under subsection (1), the vesting shall take effect without any transfer, conveyance, deed or other instrument and where any registration or such vesting is required under any law, the authority empowered to effect the registration shall do so in the name of such public officer, authority, person or body as the Public Prosecutor may specify. (4) Where the goods vested in the Federal Government under subsection (1) is an immovable goods, the vesting shall, upon production to the Registrar of Titles or the Land Administrator, as the case may be, in Peninsular Malaysia, or to the Registrar of Titles or the Collector of Land Revenue, as the case may be, in Sabah or the Registrar of Titles or the Director of Lands and Surveys, as the case may be, in Sarawak, of the order of the court forfeiting the immovable property, or in the case of property forfeited under section 117, a certificate of the Public Prosecutor certifying that the goods has been forfeited, be registered in the name of the Federal Lands Commissioner.
Service of summons
s 120
Open ↗(1) Every summons issued by a court against any person in connection with any civil or criminal proceedings under this Act may be served on the person named therein— (a) by delivering the summons to the person or any adult member of his family or any of his servants residing with him at his usual or last-known place of residence; (b) by leaving the summons at his usual or last-known place of residence or business in an envelope addressed to the person; (c) by sending the summons by registered post addressed to the person at his usual or last-known place of residence or business; or (d) where the person is a company, a limited liability partnership, a firm, a society, an association or other body of persons— (i) by delivering the summons to the secretary or other like officer of the company, limited liability partnership, firm, society, association or other body of persons at its registered office or principal place of business; or (ii) by sending the summons by registered post addressed to the company, limited liability partnership, firm, society, association or other body of persons at its registered office or principal place of business. (2) Any summons sent by registered post to any person in accordance with subsection (1) or by delivering the summons to the person or to any adult member of his family or any of his servant residing with him shall be deemed to be duly served on the person. (3) When a summons issued by a court is served, an affidavit of the service purporting to be made before an officer duly authorized to administer an oath shall be admissible in evidence.
Compounding of offences
s 121
Open ↗(1) The officer of goods and services tax may, with the written consent of the Public Prosecutor, compound any offence committed by any person under this Act and prescribed to be a compoundable offence by making a written offer to the person suspected of committing the offence to compound the offence on payment to the Director General of an amount of money not exceeding fifty per centum of the amount of the maximum fine for that offence within the time specified in the offer. (2) An offer under subsection (1) may be made at any time after the offence has been committed, but before any prosecution for it has been instituted, and if the amount specified in the offer is not paid within the time specified in the offer or within any extended period as the Director General may grant, prosecution for the offence may be instituted at any time after that against the person to whom the offer was made. (3) Where an offence has been compounded under subsection (1), no prosecution shall after that be instituted in respect of the offence against the person to whom the offer to compound was made.
Court order
s 122
Open ↗(1) Where any person is found guilty of an offence under this Act, the court before which the person is found guilty shall order the person to pay to the Director General the amount of tax due and payable under this Act, if any, as certified by the Director General and the tax shall be recoverable in the same manner as a fine as provided under section 283 of the Criminal Procedure Code. (2) In addition to subsection (1), the court has civil jurisdiction to the extent of the amount and the order is enforceable in all respects as a final judgement of the court in favour of the Director General. (3) Where any person is found not guilty of an offence under this Act, and if he has paid the amount of tax due and payable under this Act pursuant to section 98, in respect of the offence charged, the court may order the amount paid to be refunded to such person where no notice of appeal is filed.
Back to Goods and Services Tax Act 2014 — full text
Provisions on this page are reproduced verbatim from official open data. See the attribution line.
Source: Laws of Malaysia, Attorney General's Chambers of Malaysia (lom.agc.gov.my). Not a copy of the Gazette printed by the Government Printer (Interpretation Acts 1948 and 1967, s 61).
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