M/S RAM NARESH RAMA KANT VERSUS STATE OF U.P. AND 3 OTHERS

Seizure of goods – petitioner is ready to furnish security to the satisfaction of the authority concern for the release of the goods – Held that:- The goods and the seized vehicle are directed to be released on the petitioner furnishing security to the satisfaction of the authority concerned in accordance with the provisions of Section 129(1)(a) of the U.P. GST as the petitioner is the owner of the goods – petition disposed off.

No.- Writ Tax No. – 1688 of 2018

Dated.- December 20, 2018

Pankaj Mithal And Pankaj Bhatia JJ.

For the Petitioner : Ankur Agarwal,Suyash Agarwal

For the Respondent : C.S.C.,A.S.G.I.

ORDER

The order of seizure under Section 129(1) is under challenge. Learned counsel for the petitioner is ready to furnish security to the satisfaction of the authority concern for the release of the goods.

In view of the above, the goods and the seized vehicle are directed to be released on the petitioner furnishing security to the satisfaction of the authority concerned in accordance with the provisions of Section 129(1)(a) of the U.P. GST as the petitioner is the owner of the goods.

The petition stands disposed of.

MANGALORE GANESH BEEDI WORKS VERSUS STATE OF U.P. AND 2 OTHERS

Seizure of goods alongwith vehicle – detention on the ground that during physical verification the goods were less in quantity then mentioned in the invoice – Held that:- The seized goods and the vehicle shall be released in favour of the petitioner on furnishing security of the value as provided in accordance with Section 129(1)(a) of the U.P. GST Act – petition disposed off.

No.- Writ Tax No. – 1679 of 2018

Dated.- December 20, 2018

Pankaj Mithal And Pankaj Bhatia JJ.

For the Petitioner : Shubham Agrawal

For the Respondent : C.S.C.

ORDER

The goods and the vehicle in transit have been seized as during physical verification the goods were less in quantity then mentioned invoice.

Sri C.B. Tripathi, may seek instructions in the matter and file counter affidavit within three weeks. Rejoinder affidavit, if any, may be filed within one week thereafter.

List thereafter.

In the meantime, the seized goods and the vehicle shall be released in favour of the petitioner on furnishing security of the value as provided in accordance with Section 129(1)(a) of the U.P. GST Act.

M/S S.R. TRADERS IMAMPUR RESALABAGH VERSUS STATE OF U.P. AND 3 OTHERS

Seizure of goods with vehicle – Section 129(1) of the GST Act – Held that:- The petitioner has already deposited the tax and the penality but even then the goods are not being released and they are insisting that the petitioner-owner should appear instead of the authorised representation or the signatory – respondent are directed to forthwith release the goods and vehicle provisionaly unconditional.

No.- Writ Tax No. – 1684 of 2018

Dated.- December 20, 2018

Pankaj Mithal And Pankaj Bhatia JJ.

For the Petitioner : Suyash Agarwal,Ankur Agarwal

For the Respondent : C.S.C.,A.S.G.I.

ORDER

In respect of the seized goods and vehicle under Section 129(1) of the GST Act the petitioner has already deposited the tax and the penality but even then the goods are not being released and they are insisting that the petitioner-owner should appear instead of the authorised representation or the signatory.

Sri Tripathi, may seek instruction in this matter and may file counter affidavit within three weeks. Rejoinder affidavit, if any, may be filed within one week thereafter.

In the meantime, respondent are directed to forthwith release the goods and vehicle provisionaly unconditional.

M/S PATRAN STEEL ROLLING MILL VERSUS ASSISTANT COMMISSIONER OF STATE TAX, UNIT 2

Provisional attachment of Bank Accounts – It was submitted that even if the case of the respondents is taken at face value, at best, the tax liability of the petitioner would come to ₹ 13,84,000/- and therefore, the amount of ₹ 17,00,000/- deposited by the petitioner should be sufficient to protect the interests of the revenue – Held that:- From the facts as emerging on record, it appears that the tax liability of the petitioner in terms of the goods seized as well as the transporter’s statement, the same would not exceed ₹ 13,00,000/-. The petitioner has already deposited a sum of ₹ 17,00,000/- with the respondent. Insofar as the amount assessed towards the penalty is concerned, in the absence of any proceedings having been undertaken under the provisions of the GGST Act as well as any penalty having been imposed, the respondent authorities were not justified in resorting to such a drastic coercive measure of attachment of the bank accounts and seizure of goods, which results in bringing the business of the petitioner to a grinding halt.

There is nothing to show that the respondents would not be in a position to recover any amount that the petitioner may ultimately be held liable to pay. In these circumstances, without recording any such satisfaction, the respondent could not have formed the opinion that it was necessary to resort to provisional attachment to protect the interest of the Government revenue. The impugned order of attachment, therefore, cannot be sustained.

The impugned order of attachment dated 22.10.2018, attaching the bank accounts of the petitioner is hereby quashed and set aside – Appeal allowed.

No.- R/SPECIAL CIVIL APPLICATION NO. 16931 of 2018

Dated.- December 20, 2018

MS HARSHA DEVANI AND MR A. P. THAKER, JJ.

For The Petitioner : MR D K TRIVEDI (5283)

For The Respondents : MR UTKARSH SHARMA, ASSTT. GOVT. PLEADER

ORAL JUDGMENT

(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)

1. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner seeks the following substantive reliefs:

“[C] Your Lordships may be pleased to issue writ of mandamus or any other appropriate writ directing the respondent authorities to immediately remove attachment of bank accounts of (1) Axis Bank, Bhavnagar, viz., Nos. (a) C/C A/c No.917030053366001, (b) CURRENT A/c No.917020055857122 and (c) Savings A/c No.200010100069386 of Mr. Manish Bansal, (2) IndusInd Bank, Bhavnagar, viz., (a) Savings A/c No.159825708079 of Mr. Manish Bansal, and (b) Term Deposit A/c No.300723646746 and (3) State Bank of India, Bhavnagar, viz., (a) 31638538591 and (b) 31595134117, and that is how, the said bank accounts may immediately be defreezed;

[D] Your Lordships may be pleased to direct the respondent authorities to immediately remove attachment of goods being attached vide Form GST INC – 02 (Order of seizure) dated 12/10/2018 (the date of order is wrongly typed as 12/11/2018) being annexed at Annexure ‘C’ above. The said order of seizure may kindly be quashed and set aside;”

2. The petitioner is engaged in the business of manufacturing and supplying of various iron and steel products, viz., TMT bars, etc. and is paying goods and service tax in respect of the goods manufactured and supplied by it from the registered factory premises. On 11.10.2018, the first respondent – Assistant Commissioner of State Tax, Unit-2 visited the factory premises of the petitioner company. During the course of such visit, he carried out comparison of the physical stocks of raw material and finished goods with recorded the quantity of the same and found that there was a stock difference, inasmuch as physical goods valued at ₹ 51,73,633/- were found in excess in the factory premises when compared to the recorded quantity. It appears that the first respondent also carried out investigation at the end of a transporter, according to whom, the petitioner had supplied and received goods without payment of tax and therefore, the tax was payable. It is the case of the petitioner that under pressure, threat and duress, the first respondent obtained a statement of the proprietor of the petitioner firm and further pressurized the petitioner to deposit ₹ 17,00,000/-. The respondents also claimed that a total of ₹ 55,37,237/- was payable by the petitioner and obtained post-dated cheques of the differential amount from the petitioner under pressure, threat and duress. Subsequently, by an affidavit dated 26.10.2018, the proprietor of the petitioner firm retracted the statement recorded by the first respondent.

2.1 By an order of seizure dated 12.10.2018 issued in Form GST INS-02, the first respondent attached the goods which according to him were found in excess on the factory premises of the petitioner. It is the case of the petitioner that the respondent worked out the amount payable by the petitioner at ₹ 55,37,237/- and thereafter, on 22.10.2018, the following accounts of the petitioner viz.: Axis Bank Ltd., Bhavnagar, C/C A/c No.917030053366001, Current A/c No.917020055857122 and Savings A/c No.200010100069386 of Manish Bansal as well as M/s. IndusInd Bank, Bhavnagar A/c No.159825708079 of Manish Bansal and Term Deposit A/c No.300723646746 as well as State Bank of India, Waghawadi Road Branch, Bhavnagar A/c No.31595134117 and 31638538591 came to be attached by the first respondent. The petitioner requested the respondent authorities to release its bank accounts; however, to no avail. It is the case of the petitioner that on account of seizure of its goods as well as attachment of the bank accounts, the petitioner is not in a position to carry on its day to day business and make payment of statutory dues like GST, income tax, local taxes, etc. It is in these circumstances, that the petitioner has approached this court seeking the reliefs noted above.

3. Mr. D. K. Trivedi, learned advocate for the petitioner submitted that the provisional attachment in this case has been made under section 83 of the Gujarat Goods and Services Tax Act, 2017 (hereinafter referred to as “the GGST Act”). It was submitted that sub-section (1) of section 83 of the GGST Act provides that where during the pendency of any proceedings under section 62 or section 63 or section 64 or section 67 or section 73 or section 74, the Commissioner is of the opinion that for the purpose of protecting the interest of the Government revenue, it is necessary so to do, he may, by order in writing attach provisionally any property, including bank account, belonging to the taxable person in such manner as may be prescribed. It was submitted that in this case, no proceedings are pending under any of the sections mentioned in sub-section (1) of section 83 of the GGST Act and hence, the orders of provisional attachment are bad in law.

3.1 It was submitted that the respondents have calculated the tax liability of the petitioner by making an addition of 100% of the goods and have, accordingly, computed twice as big a figure than warranted even if the calculation taken by the respondents is otherwise taken to be true. It was submitted that when the petitioner had already paid ₹ 17,00,000/- on the date when the search came to be conducted, there was no reason for the respondents to believe that the petitioner would not pay its tax dues after proper assessment is carried out and, hence, there was no warrant for passing the order of attachment. It was submitted that even if the case of the respondents is taken at face value, at best, the tax liability of the petitioner would come to ₹ 13,84,000/- and therefore, the amount of ₹ 17,00,000/- deposited by the petitioner should be sufficient to protect the interests of the revenue. It was, accordingly, urged that therefore, the attachment of the bank accounts is required to be removed and the goods seized by the respondents are required to be released.

4. On the other hand, Mr. Utkarsh Sharma, learned Assistant Government Pleader, placed reliance upon the averments made in the affidavit-in-reply filed on behalf of the respondents. A perusal of the averments made in the affidavitin- reply shows that the respondents have mainly relied upon the admissions made by the petitioner on the day of the search, despite the fact that the statement was subsequently retracted by the proprietor of the petitioner firm.

5. A perusal of the computation of tax as made by the first respondent reveals that while assessing the tax liability as well as penalty, he has added 100% to the stock found during the course of search. Evidently therefore, the amount of 37,25,016/- sought to be recovered on the tax and penalty payable on the dues of stock is twice the amount of goods actually found. An amount of ₹ 18,00,000/- has been computed on the basis of statement of the transporter by adding 100% of the quantity stated by him. Thus, an inflated amount of ₹ 55,37,237/- has been computed towards the tax liability.

6. From the facts as emerging on record, it appears that the tax liability of the petitioner in terms of the goods seized as well as the transporter’s statement, the same would not exceed ₹ 13,00,000/-. The petitioner has already deposited a sum of ₹ 17,00,000/- with the respondent. Insofar as the amount assessed towards the penalty is concerned, in the absence of any proceedings having been undertaken under the provisions of the GGST Act as well as any penalty having been imposed, in the opinion of this court, the respondent authorities were not justified in resorting to such a drastic coercive measure of attachment of the bank accounts and seizure of goods, which results in bringing the business of the petitioner to a grinding halt.

7. Sub-section (1) of section 83 of the GGST Act provides that where the Commissioner is of the opinion that for the purpose of protecting the interest of the Government revenue, it is necessary so to do, he may, by order in writing attach provisionally any property, including bank account, belonging to the taxable person. On a plain reading of the said provision, it is evident that before resorting to such drastic action, the Commissioner is required to form an opinion that it is necessary to do so to protect the interest of the revenue. For the purpose of arriving at such an opinion, the Commissioner should first form an opinion that the petitioner would not be in a position to pay the tax dues after the assessment proceedings are over. In the facts of the present case, the petitioner firm is a going business and the petitioner has readily deposited a sum of ₹ 17,00,00/- which covers more than the tax liability that may be assessed. It is not the case of the respondents that the petitioner is a fly by night operator or that it does not have the means to pay the dues that might to assessed at the end of assessment proceedings, which at present have not even been commenced. There is nothing to show that the respondents would not be in a position to recover any amount that the petitioner may ultimately be held liable to pay. In these circumstances, without recording any such satisfaction, the respondent could not have formed the opinion that it was necessary to resort to provisional attachment to protect the interest of the Government revenue. The impugned order of attachment, therefore, cannot be sustained. It is clarified that the fact that the petitioner has deposited a sum of ₹ 17,00,000/- during the course of the search proceedings shall not be construed as an admission of such dues on the part of the petitioner.

8. Before parting, the court deems it fit to caution the concerned authorities that while exercising powers under section 83 of The GGST Act, the authorities should try to balance the interest of the Government revenue as well as a dealer to ensure that while the interest of the revenue is safeguarded, the dealer is also in a position to continue with his business, because it is only if the dealer continues with the business that he would generate more revenue. The authorities should keep in mind that bringing the business of a dealer to a halt does not in any manner serve the interest of the revenue. Therefore, while taking action under section 83 or 67(2) of the GGST Act, the concerned authorities should take care to ensure that equities are maintained and while securing the interest of the revenue, they should attempt to see that the dealer is in a position to continue with the business. This court does not intend to lay down any absolute proposition that in no case drastic action should be taken, but that the respondents should consider the background and history of the dealer as well as his financial position to ascertain as to whether or not he would otherwise be in a position to pay the dues that may be assessed upon the culmination of any assessment proceedings that may be initiated. If the dealer is a fly by night operator or a habitual offender or does not have sufficient means to pay the dues that may arise upon assessment, such action may be justified. Such drastic powers under section 83 of the Act should not be exercised as a matter of course, but only after due application of mind to the relevant factors.

9. For the foregoing reasons, the petition succeeds and is, accordingly, allowed. The impugned order of attachment dated 22.10.2018, attaching the bank accounts of the petitioner, viz., (1) Axis Bank, Bhavnagar, viz., Nos. (a) C/C A/c No.917030053366001, (b) CURRENT A/c No.917020055857122 and (c) Savings A/c No.200010100069386 of Mr. Manish Bansal, (2) IndusInd Bank, Bhavnagar, viz., (a) Savings A/c No.159825708079 of Mr. Manish Bansal, and (b) Term Deposit A/c No.300723646746 and (3) State Bank of India, Bhavnagar, viz., (a) 31638538591 and (b) 31595134117, is hereby quashed and set aside. The impugned seizure order dated 12.11.2018 made under rule 139(2) of the Gujarat Goods and Services Tax Act, 2017 (Annexure “C” to the petition) is also hereby quashed and set aside. The respondents are directed to forthwith release the above mentioned bank accounts as well as the seized goods of the petitioner.

10. Rule is made absolute accordingly, with no order as to costs.

Direct Service is permitted.

ADLABS ENTERTAINMENT LIMITED VERSUS UNION OF INDIA

Repayment of borrowed funds – entertainment tax – Held that:- The issue is required to be examined at the highest level before the Government. We request the Government i.e the Chief Secretary to constitute a High Level Committee which would besides others, comprise of Principal Secretary of Finance and the Secretary of Tourism Department – appeal allowed by way of remand.

No.- WRIT PETITION NO. 3027 OF 2018

Dated.- December 21, 2018

AKIL KURESHI & M.S. SANKLECHA, JJ.

Mr. Abhishek Rastogi a/w Mr. Ankit Shah, Ms. Rashmi Deshpande i/by Khaitan & Co for the Petitioner

Mr. S.P. Bharti for Respondent No. 5

Mr. Himanshu Takke, AGP for Respondent Nos. 3 and 4

Mr. Pradeep S. Jetly a/w Mr. J.B. Mishra for Respondent Nos. 1 & 2  

P.C.:

1. Petitioner, a limited company, has set up a theme park and water park at Khalapur, Maharashtra by making sizable capital investment. As a part of the tourism policy of the State Government, the petitioner was offered certain incentives in the nature of entertainment tax waiver. The petitioner would point out that at the relevant time, the rate of entertainment tax was 15%. Thus, on account of heavy capital investment needed, the petitioner was granted such incentive and as a result, the petitioner would have an advantage over other entities in the same business who did not enjoy such incentive of tax waiver.

2. Upon introduction of Goods & Services Tax (“GST” for short), the entertainment tax was subsumed. The GST currently prescribed is @ 18%. As a result of these changes, according to the petitioner, two things happened. First is, since the entertainment tax was abolished, the incentive offered to the petitioner no longer survived. Secondly, the petitioner would now have to pay tax @ 18% of GST at par with other entities. According to the petitioner, this made the petitioner’s business totally unviable. The petitioner had borrowed funds from banks and financial institutions for making capital investment which the petitioner was unable to repay on time.

3. Learned counsel for the petitioner submitted that the petitioner was granted incentive under the state tourism policy. The petitioner was unable to recover even its capital investment because the entire tax structure changed with the advent of GST. Under similar circumstances, the State of Rajasthan has issued notification granting partial relief to the similar industries. Learned counsel states that even the State of Uttar Pradesh is in the process of issuing similar notification. It is therefore requested that the State Government should examine this aspect and give relief to that extent possible. Learned counsel for the petitioner submitted that if the industry would go sick, besides the capital investment going waste, it will also render larger number of people directly or indirectly employed in the industry jobless. We are informed that the Maharashtra Tourism Development Corporation has also written to the Government taking up the cause of the petitioner.

4. In our opinion, the issue is required to be examined at the highest level before the Government. We request the Government i.e the Chief Secretary to constitute a High Level Committee which would besides others, comprise of Principal Secretary of Finance and the Secretary of Tourism Department. An authorized representative of the petitioner may also be given a chance of representation and if needed, be given personal hearing by such committee. The petitioner would make a representation to the Committee through Secretary of Tourism which may be done latest by 5.1.2019.

5. The conclusions of the Committee in the form of recommendations may be placed before the Government. The same may also be placed before the Court on the next date of hearing.

6. S.O to 21st February, 2019.

SHAFI KHAN KHOKHAR VERSUS STATE OF MAHARASHTRA & ORS.

Jurisdiction – parallel proceedings / enquiries under the same subject – contention of the petitioner is that he is already being subjected to enquiry by CGST Authorities at Jaipur who have issued him a summons dated 7.9.2017 – Held that:- It is an undisputed position that the petitioner has taken registration under the CGST Act 2017 & Finance Act, 1994 (service tax) in Mumbai. Thus, having taken registration, he is subject to the jurisdiction of Mumbai authorities in respect of the business which he has carried out within jurisdiction of the authority – Once registration has been taken in Mumbai and some services have been rendered in Mumbai, then the petitioner is subject to the jurisdiction of Mumbai Authorities. Thus, no interference with the investigation by the respondent No. 2 at Mumbai is warranted – petition dismissed.

No.- WRIT PETITION NO. 2951 OF 2018

Dated.- December 21, 2018

AKIL KURESHI & M.S. SANKLECHA, JJ.

Mr. Anand Mishra i/by Mr. A.M.Saraogi for the Petitioner

Mr. Amit Shastri, AGP for Respondent No. 1

Mr. Pradeep S. Jetly a/w Mr. J.B. Mishra for Respondent Nos. 2 & 3  

P.C.:

1. This petition under Article 226 of the Constitution of India seeks to challenge an enquiry initiated by respondent No. 2 – The Superintendent of CGST & Central Excise (AE) Mumbai. This by issuing summons to him dated 28.9.2018 under Section 14 of the Central Excise Act, 1944 and Section 70 of the Central Goods & Services Tax Act, 2017.

2. The basic contention of the petitioner is that he is already being subjected to enquiry by CGST Authorities at Jaipur who have issued him a summons dated 7.9.2017. In the above view, it is his contention that two parallel proceedings / enquiries under the same subject are without jurisdiction. Thus, the enquiry by respondent No. 2 in Mumbai being later in point of time be quashed.

3. Mr. Jetly, the learned counsel for respondent Nos. 2 and 3 points out that the petitioner has responded to the impugned summons dated 28.9.2018. Further he has also made a statement before the authorities on 18.1.2018. Thus, the petition need not be entertained.

4. It is an undisputed position before us that the petitioner has taken registration under the CGST Act 2017 & Finance Act, 1994 (service tax) in Mumbai. Thus, having taken registration, he is subject to the jurisdiction of Mumbai authorities in respect of the business which he has carried out within jurisdiction of the authority. It is the case of the petitioner that primarily his business is at Jaipur. This, however, would not determine the issue of whether or not respondent No. 2 has jurisdiction. This is more particularly so as Section 25 of the CGST Act 2017 provides for a separate registration in respect of each state. Once registration has been taken in Mumbai and some services have been rendered in Mumbai, then the petitioner is subject to the jurisdiction of Mumbai Authorities. Thus, no interference with the investigation by the respondent No. 2 at Mumbai is warranted.

5. Accordingly, the petition is dismissed. However, it is made clear that in respect of documents which are sought by respondent No. 2 at Mumbai, if the originals of the same have been given to the authorities at Jaipur (on production of evidence), then the production of the zerox copies of the same will be accepted by the Authorities at Mumbai as sufficient compliance.

NIRMAN ESTATE DEVELOPERS PRIVATE LIMITED VERSUS UNION OF INDIA AND ORS.

Levy of GST – Constitutional Validity of N/N. 4 of 2018-Central Tax (Rate) dated 25th January, 2018 and N/N. 4 of 2018-State Tax (Rate) dated 25th January, 2018 – basic grievance of the Petitioner is that the notifications seek to bring the tax an activity which would not amount to service or supply of service – Held that:- The Petitioner is directed to serve the Respondents once again the copy of this order upon the Respondent Nos. 1 and 2 so as to ensure that the Respondents will remain present on the next date – Stand over to 18th January, 2019.

No.- WRIT PETITION NO.3357 OF 2018

Dated.- December 21, 2018

AKIL KURESHI AND M.S. SANKLECHA, JJ.

Mr. Abhishek Rastogi with Mr. Ankit Shah with Ms. Rashmi Deshpande i/by M/s. Khaitan & Co. for the Petitioner.

Mr. V.A. Sonpal, Special counsel for Respondent No.3.  

P.C.:

1. This Petition under Article 226 of the Constitution of India challenges Notification No.4 of 2018-Central Tax (Rate) dated 25th January, 2018 and Notification No.4 of 2018-State Tax (Rate) dated 25th January, 2018. The basic grievance of the Petitioner is that the notifications seek to bring the tax an activity which would not amount to service or supply of service. Thus it is submitted that it is completely ultravires the Act.

2. The Respondent Nos.1 and 2 are not represented before us. The Petitioner is directed to serve the Respondent Nos.1 and 2.

3. Mr. Rastogi, learned counsel in support of the petition states that Respondent Nos. 1 and 2 have been served. He undertakes to file an affidavit of service within period of one week from today. In any event, the Petitioner is directed to serve the Respondents once again the copy of this order upon the Respondent Nos. 1 and 2 so as to ensure that the Respondents will remain present on the next date. It is made clear that on the next occasion we will proceed to hear the petitioner, even if the Respondent Nos. 1 and 2 are not represented.

4. Stand over to 18th January, 2019.

CHOODAMANI PARMESHWARAN IYER VERSUS STATE OF GUJARAT

Issuance of summons issued under Section 14 of the Central Excise Act – Section 83 of the Finance Act and Section 70 of the Central Goods and Service Tax, Act 2017 – HELD THAT:- Considering the voluntary nature of pleadings where the petitioners are desirous of getting themselves assisted by the adjudicatory process, Let them represent their case before the concerned authority. The authority concerned shall complete the same in 8 weeks’ time and if there is a need for any apprehension after once the adjudicatory process is completed, if they are not ready to fulfill their obligation, they may be given an opportunity of two more weeks for taking necessary steps. Petitioners shall appear on or before 11/01/2019 before the concerned Police Station.

Application disposed off.

No.- R/SPECIAL CRIMINAL APPLICATION NO. 11010 of 2018 With R/SPECIAL CRIMINAL APPLICATION NO. 11076 of 2018

Dated.- December 24, 2018

HONOURABLE MS JUSTICE SONIA GOKANI

MR VIRAT G POPAT(3710) for the PETITIONER(s) No. 1

for the RESPONDENT(s) No. 2

MR MANAN MEHTA, APP for the RESPONDENT(s) No. 1

ORAL ORDER

1. Petitioners are before this Court, showing willingness to be assisted by the authority concerned. However they are apprehensive of coercive action against them.

2. Petitioners seeking following reliefs in both the matters i.e. Special Criminal Application No.11010 of 2018 as well as Special Criminal Application No.11076 of 2018:

Special Criminal Application No.11010 of 2018

“9. The petitioner, therefore, prays that this Hon’ble Court be pleased:

(a) To allow this petition;

(b) To issue appropriate writ, order or direction directing that no coercive action be taken against the present petitioner till the adjudication with regard to the liability of the firms involving the present petitioner is made and pass all other consequential orders in that regard;

(c) Pending admission, hearing and final disposal of the present petition, to direct the concerned authorities not to take coercive action against the present petitioner pursuant to the summons at Annexure-A;

(d) To pass any other and further orders as may be deemed fit and proper to this Hon’ble Court.”

Special Criminal Application No.11076 of 2018 :

“8. The petitioner, therefore, prays that this Hon’ble Court be pleased:

(a) To allow this petition;

(b) To issue appropriate writ, order or direction consolidating and transferring the inquiry / proceeding of summons at Annexure-A to the appropriate authority situated at Gondal / District Rajkot and pass all other consequential orders in that regard;

(c) To issue appropriate writ, order or direction directing the concerned authority not to take coercive action against the present petitioner pursuant to the summons at Annexure-A;

(d) Pending admission, hearing and final disposal of the present petition, to direct the concerned authorities not to take coercive action against the present petitioner pursuant to the summons at Annexure-A;

(e) To pass any other and further orders as may be deemed fit and proper to this Hon’ble Court.

3. Petitioners have preferred the applications being apprehensive of the arrest on account of summons issued under Section 14 of the Central Excise Act has made applicable to the service tax vide Section 83 of the Finance Act and Section 70 of the Central Goods and Service Tax, Act 2017 (hereinafter referred to as “CGST Act”).

4. It is urged that petitioners are ready to adduce all possible evidence, which require adjudication with regard to the liability of the Firm. However, in the meantime, they may not be apprehended till their liabilities are determined by the authority concerned.

5. Learned APP appearing for the respondent-State submits that since the summons are issued, there should be no apprehension on the part of the petitioners. They should present themselves to answer to the said summons.

6. Learned advocate Mr. Popat appearing for the petitioners submits that in a similar case, the authority without finally adjudicating the issues, had arrested persons, and therefore, there is apprehension in the mind of the petitioners.

7. Considering the voluntary nature of pleadings where the petitioners are desirous of getting themselves assisted by the adjudicatory process, Let them represent their case before the concerned authority. The authority concerned shall complete the same in 8 weeks’ time and if there is a need for any apprehension after once the adjudicatory process is completed, if they are not ready to fulfill their obligation, they may be given an opportunity of two more weeks for taking necessary steps. Petitioners shall appear on or before 11/01/2019 before the concerned Police Station.

In view of the above, the present applications stand disposed of. Direct service is permitted.

M/S MAGS GARMENTS PVT. LTD. VERSUS UNION OF INDIA AND OTHERS

Appealable Order or not – Section 107 of the Central Goods and Service Tax Act, 2017 – alternative statutory remedy of appeal – HELD THAT:- The writ petition is disposed of at this stage, relegating the petitioner to avail the alternative efficacious remedy. In case the appeal is not entertained on merits, the petitioner shall be at liberty to have recourse to the appropriate remedy, in accordance with law.

Petition disposed off.

No.- CWP No. 3061 of 2018

Dated.- December 31, 2018

Mr. Justice Surya Kant, Chief Justice And Mr. Justice Ajay Mohan Goel, Judge

For the Petitioner : M/s. Amar Pratap, Goverdhan Lal And Rohit Gupta, Advocates.

For the Respondents : Mr. Rajesh K. Sharma, Assistant Solicitor General of India, Mr. Rajiv Jiwan, Advocate

ORDER

SURYA KANT, CHIEF JUSTICE (ORAL):

Having gone through the contents of the Scheme of Budgetary Support under Goods and Service Tax regime especially in the light of Tax which accrues to the Central Government under Central Goods and Service Act, 2017 and Integrated Goods and Services Act, 2017, it appears to us that the impugned order, dated 13th November, 2018, passed by the Assistant Commissioner, Goods and Service Tax, Division, Baddi is appealable before the Appellate Authority under Section 107 of the Central Goods and Service Tax Act, 2017.

Consequently, the writ petition is disposed of at this stage, relegating the petitioner to avail the alternative efficacious remedy. In case the appeal is not entertained on merits, the petitioner shall be at liberty to have recourse to the appropriate remedy, in accordance with law. Pending applications, if any, also stand disposed of.