Page 52 - GSTL_30th April 2020_Vol 35_Part 5

538 GST LAW TIMES [ Vol. 35
In support of her contention, Learned Counsel for the petitioner be-
sides relying on the relevant provisions of the Finance Act, 1994 including
Sections 73 and 75 thereof, has also placed reliance on a decision of the
Karnataka High Court dated 29-4-2015 passed in WP (C) No. 14054/2015
(Ms. Prashanthi v. Union of India) to contend that recovery proceedings de
hors adjudication and quantification of service tax dues by the registered
service tax provider is not permissible.
On the other hand, Mr. Sharma submits that these notices were issued
prior to passing of the interim order dated 20-2-2019. After the interim or-
der was passed by this Court, Department has not taken any coercive
measures against the petitioner. He further submits that petitioner has huge
amount of dues to be paid and despite having credit worthiness, petitioner
has not cleared the dues. In such circumstances, question of payment by in-
stallment perhaps may not be permissible.
Submissions made by Learned Counsel for the parties have been con-
sidered.
Related WP (C) No. 1123/2019 has been filed assailing garnishee no-
tice issued to the petitioner and further seeking direction to the petitioner’s
banker, i.e., State Bank of India to remit the money held by it into the ac-
count of the Assistant Commissioner or payment by installment.
This Court on 20-2-2019 passed the following order :-
“Petitioner is aggrieved by issuance of garnishee notices by the
State Bank of India whereby bank account of the petitioner being ac-
count No. 34890601572 has been made inoperative for the petitioner
for the purpose of appropriation of dues to be paid to the Commis-
sionerate of Central Excise and Service Tax, Guwahati on account of
service tax dues. Petitioner’s request for allowing payment of the dues
in installments is stated to be pending before the Commissioner since
2017. On the other hand, petitioner is not in a position to operate the
said bank account; in addition dealers of the petitioner have also been
instructed not to make payments to the petitioner through other bank
accounts. Learned Counsel for the petitioner has referred to Circular
dated 22-8-2015 of the Central Board of Excise and Customs, Depart-
ment of Revenue, Ministry of Finance, Govt. of India to contend that
even after garnishee notices are issued recovery of arrears may be
permitted in instalments. Petitioner has been paying the tax dues in
substantial amount; it had paid about 19,00,000.00 in December, 2018
and in January, 2019 it had paid Rs. 5,00,000.00 etc.
Mr. Sarma Learned Counsel representing respondent No. 2
may obtain instruction regarding the prayer of the petitioner to allow
payment of service tax dues in instalments. In the meanwhile, no fur-
ther coercive measures may be taken against the petitioner.
List on 27-2-2019.”
The said interim order is holding the field. Even if recovery notices
were issued by Assistant Commissioner of Goods and Services Tax prior to
passing of the interim order, as the same is holding the field, no further
steps shall be taken on the basis of the said notices and such n otices issued
under Section 87(b) of the Finance Act, 1994 read with Section 174(2)(e) of
the Central Goods and Services Tax Act, 2017 would not be acted upon un-
til further orders. However, these notices shall be subject to outcome of the
writ petition.
IA is disposed of.”
12. Basic contention of Learned Counsel for the petitioner is that having
regard to Section 73 of the Finance Act, 1994, in a case where service tax is not
levied or paid or short levied or short paid or erroneously refunded, the compe-
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