TMI Blog2020 (1) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... provisional attachment has come to an end, it will be an exercise in futility now to adjudicate this writ application on merits. We would like to dispose of this writ application balancing the equities. In other words, while granting appropriate relief to the writ applicant, we would also ensure that the interest of the State is protected - It is not even necessary now to quash the impugned order of the provisional attachment passed under Section 83 of the Act as the validity period has come to an end. This writ application is disposed off with a direction that the writ applicant shall maintain, at all time, a stock worth minimum sum of ₹ 4 Crore till the final disposal of the adjudication proceedings arising out of the show-cause notice dated 21st December, 2018 and 26th December, 2018 respectively. - R/SPECIAL CIVIL APPLICATION NO. 618 of 2019 - - - Dated:- 9-1-2020 - HONOURABLE MR.JUSTICE J.B.PARDIWALA And HONOURABLE MR. JUSTICE BHARGAV D. KARIA AMAL PARESH DAVE, MR PARESH M DAVE FOR THE PETITIONER MR. SOHAM JOSHI, ASST. GOVERNMENT PLEADER FOR THE RESPONDENT ORDER ( PER : HONOURABLE MR.JUSTICE J. B. PARDIWALA ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e like. The Petitioner has commenced commercial production in the factory around December, 2005, and the Petitioner has been continuously manufacturing the above referred goods in the factory on regular basis. The Petitioner is a fairly large entity in terms of manufacture and sale of goods. In F.Y. 2017-18, the total sales of the Petitioner Company have been aggregating to ₹ 1229.52 crores (rounded of). A statement showing details of the Petitioner's soles and other income during last five years is enclosed and marked as Annexure- A to this petition. The Petitioner has been contributing substantially to the Government exchequer by paying duties and taxes like Central Excise, Service Tax, Value Added Tax etc. In year 2017-18. the Petitioner has paid Central Excise duties aggregating to ₹ 158.03 crores (rounded of), whereas VAT and CST paid by the Petitioner in year 2016-17 has been to the tune of ₹ 25.16 crores (rounded of). After introduction of GST with effect from 1.7.2017, the Petitioner has paid substantial amount of SGST and CGST also. Three statements containing details of payments of excise duty, VAT and CST, and CGST and SGST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Heading 26.21 of the Central Excise Tariff. Extracts of Chapter 26 of the Central Excise Tariff as it stood prior to 1.7.2017 are enclosed and marked as Annexure- E . The Central Government had granted exemption from payment of Central Excise duty for goods of Heading 26.21 of the Tariff, and therefore no excise duty was chargeable on Dolachar/Char CoaI/Coal waste prior to 1.7.2017. Since coal waste has been arising in the Petitioner's factory as a result of burning and accompanying operations in kilns, the Petitioner has been disposing of such waste coal by selling the same to small time brik producers and similar traders, who could use such waste coal, though having a very low calorific value and quite high ash content. There being no liability to pay excise duty on such waste coal, classifiable under Heading 26.21 of the Central Excise Tariff, the Petitioner', and all similarly situated manufacturers, were not paying any excise duty on sale of coal waste i.e. Dolachar/Char Coal. Specimen tax invoices issued by the Petitioner for selling coal waste for the period prior to July. 2017 are enclosed and marked as Annexure- F Colly. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e coal is not coal , and therefore it actually does not merit classification under Heading 2701, Sub Heading 27012090, and therefore the liability of Compensation Cess at the rate of 400 per Ton otherwise imposed on coal of Heading 2701 has not been paid by the Petitioner. The fact that Compensation Cessi is not paid on waste cool is also clearly shown in the invoices of the Petitioner, which have been submitted before the proper GST Offices in accordance with the procedure laid down under the GST law. This position i.e. paying total 5% GST on waste coal in accordance with the rates of GST prescribed against S.H.No.27012090, but not paying Compensation Cess has continued till now in the Petitioner s case. The Petitioners know and understand for sure that other similarly situated manufacturers of Kutch area have also followed the same method of classifying coal waste i.e. Dolachar/Char Coal under HSN Code No.27012090 from July, 2017, and paying GST at the rate of 5% Adv. without paying any Compensation Cess. 9. On 31.10.2018, Officers of SGST Office i.e. the 3rd Respondent herein, visited the Petitioner s factory and verified the statutory documents including invoices o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milar attachment orders have been made by the 3rd Respondent herein for the Petitioner's other bank accounts with the Bank of Baroda and Dena Bank; and attachment orders for the Petitioner's accounts with these banks have also been served upon the Managers of these banks by the 3rd Respondent herein. Consequently, bank accounts of the Petitioner with these banks, namely, Bank of Baroda and Dena Bank, also stand attached, and consequently in operational. However, the attachment orders served upon the Managers of Bank of Baroda and Dena Bank are not available with the Petitioner, because copies of such attachment orders have also not been marked or communicated to the Petitioner by the 3rd Respondent herein. As a result of these orders made by the 3rd Respondent herein, the Petitioner's bank accounts and facilities like Cash Credit (ie. CC Account facility) etc. are suspended, and the Petitioner s banking facility and the like have become in operational. The business and the financial transactions of the Petitioner have come to a grinding halt. 11. Upon receiving the information from the bankers about the attachment orders above referred, the Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. On 17th January, 2019, this Court passed the following order; 1. Mr. Paresh Dave, learned advocate for the petitioner has submitted that for recovery of a sum of rupees three crore and odd, six bank accounts of the petitioner have been provisionally attached by issuing notices under section 83 of the Gujarat Goods and Services Tax Act, 2017, to the concerned banks. It was submitted that the show cause notices have been issued on 21st and 26th December, 2018 and immediately thereafter, the orders of provisional attachment have been made. The learned advocate has submitted a statement showing the details of the bank accounts of the petitioner, which indicates that the petitioner has a large amount of cash lying at its disposal with the concerned banks. 2. A perusal of the record of the case reveals that the petitioner is not a fly by night operator and has paid duty and tax to the tune of more than rupees one hundred crore in the last year. Under the circumstances, the respondent shall explain the expediency and the rationale behind ordering attachment of all the bank accounts of the petitioner and virtually bringing its business to a grinding ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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