Page 90 - GSTL_14th May 2020_Vol 36_Part 2

192 GST LAW TIMES [ Vol. 36
13. Mr. Chakraborty further relied on judgments of the Punjab and
Haryana High Court, Calcutta High Court and Andhra Pradesh High Court in
PML Industries Ltd. v. Commissioner of Central Excise [2013 (290) E.L.T. 3 (P & H)],
I.C.I. India Ltd. v. Collector of Customs [1992 (60) E.L.T. 529 (Cal.)] and Commission-
er of Customs & Central Excise, Hyderabad-IV v. Sunder Ispat Ltd. [2015 (316) E.L.T.
238 (A.P.)] respectively to submit that the respondent authorities are creatures of
statute and can only exercise power that has been specifically entrusted upon
them and cannot under any circumstances travel beyond the scope of the statute.
14. Mr. Chakraborty further relied on judgments passed in relation to
Section 281B of the Income-tax Act, 1961 (a similar provision for provisional at-
tachment) in Shrimati Majjo v. Assistant Commissioner of Income-Tax and Another
[(1991) 187 ITR 642], Sukhpal Singh (HUF) v. Commissioner of Income-Tax and An-
other [(1985) 156 ITR 480], VLS Finance Limited and Others v. The Assistant Commis-
sioner of Income Tax & Another [2012 SCC Online Del 1363] and Electro Zavod (In-
dia) Pvt. Ltd. and Others v. Commissioner of Income-Tax and Others [(2005) 278 ITR
187] to highlight the drastic nature of a provision for provisional attachment and
the scope and limitation of the same.
15. Mr. Chakraborty also relied on the judgments of the Gujarat High
Court in Valerius Industries v. Union of India [2019 (30) G.S.T.L. 15 (Guj.)] wherein
the Court had held that initiation of proceedings under Section 67 of the CGST
Act, 2017 by itself is not sufficient to provisionally attach the property for the
purpose of protecting the interest of the government revenue. The counsel then
relied on Pranit Hem Desai v. Additional Director General & Others (Special Civil
Application No. 9392 of 2019) [2019 (30) G.S.T.L. 396 (Guj.)] wherein the Court
observed the nature of drastic power under Section 83 and highlighted the ra-
tionale of exercising such power.
16. Relying heavily on the above judgments, he submitted that Section
83 of the CGST Act, 2017 does not provide either for any extension of an order of
provisional attachment or for issuance of any fresh order of provisional attach-
ment. According to him, the Revenue being a branch of the Executive cannot as-
sume such jurisdiction. He submitted that if a fresh order of provisional attach-
ment on the same property of the petitioner in the same case is allowed, the same
would make redundant sub-section (2) of Section 83 of the CGST Act, 2017, and
accordingly, that cannot be the intention of the Legislature. He further submitted
that since the provisional attachment of the bank account of the petitioners cre-
ates embargo on the rights of the petitioners as guaranteed under Articles
19(1)(g), 300A and 301 of the Constitution of India, the order of provisional at-
tachment during pendency of investigation cannot continue for an indefinite pe-
riod, and it is for that reason the Legislature had provided the period of one year
for completion of such investigation and adjudication of alleged demand, if any,
and in the interregnum, provisional attachment would be in operation.
17. Mrs. Sanjukta Gupta, Counsel appearing on behalf of the respond-
ents submitted that in the instant case investigation has been initiated under Sec-
tion 67 of the CGST Act, 2017 and the demand will be made under Section 74 of
the CGST Act, 2017. The Counsel submits that the fresh order of provisional at-
tachment was issued on the grounds that the investigation authorities have come
across fresh evidences against the writ petitioners and also that there is no bar
under Section 83 of the CGST Act, 2017, preventing a fresh order of provisional
attachment.
GST LAW TIMES  14th May 2020  90