TMI Blog2020 (7) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... H SHRIVASTAVA AND MS. VANDANA KASREKAR Shri Sunil Jain, learned Sr. Counsel with Shri Kushagra Jain, learned counsel for petitioner. Shri Prasanna Prasad, learned counsel for respondent. Shri Shailesh Kumar Mehta, Sr. Intelligence Officer also present in person. O R D E R As per Prakash Shrivastava, J:- By this petition, the petitioner has challenged the notice dated 20th June, 2020 whereby the premises of the petitioner has been sealed under the provisions of The Central Goods and Services Tax Act, 2017 (for short GST Act ). [2] The case of the petitioner is that the petitioner is the manufacturer of sweet betel nut and which has all the necessary licenses and permissions for this purpose and is regularly paying the GST. Further case of the petitioner is that the Plot No.15-A/B-1, Sector-B, Industrial Area, Sanwer Road, Indore belongs to Shri Kishore Wadhwani and petitioner has taken this plot on lease from Shri Kishore Wadhwani and the petitioner is running the manufacturing unit on this plot. The further case of the petitioner is that apart from the above, it has no connection with Shri Kishore Wadhwani. Earlier in the year 2011 Excise Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eizure (1) Where the proper officer, not below the rank of Joint Commissioner, has reasons to believe that (a) a taxable person has suppressed any transaction relating to supply of goods or services or both or the stock of goods in hand, or has claimed input tax credit in excess of his entitlement under this Act or has indulged in contravention of any of the provisions of this Act or the rules made thereunder to evade tax under this Act; or (b) any person engaged in the business of transporting goods or an owner or operator of a warehouse or a godown or any other place is keeping goods which have escaped payment of tax or has kept his accounts or goods in such a manner as is likely to cause evasion of tax payable under this Act, he may authorise in writing any other officer of central tax to inspect any places of business of the taxable person or the persons engaged in the business of transporting goods or the owner or the operator of warehouse or godown or any other place. (2) Where the proper officer, not below the rank of Joint Commissioner, either pursuant to an inspection carried out under sub-section (1) or otherwise, has reasons to believe that any goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized: Provided that the period of six months may, on sufficient cause being shown, be extended by the proper officer for a further period not exceeding six months. (8) The Government may, having regard to the perishable or hazardous nature of any goods, depreciation in the value of the goods with the passage of time, constraints of storage space for the goods or any other relevant considerations, by notification, specify the goods or class of goods which shall, as soon as may be after its seizure under sub-section (2), be disposed of by the proper officer in such manner as may be prescribed. (9) Where any goods, being goods specified under sub-section (8), have been seized by a proper officer, or any officer authorised by him under subsection (2), he shall prepare an inventory of such goods in such manner as may be prescribed. (10) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to search and seizure, shall, so far as may be, apply to search and seizure under this section subject to the modification that sub-se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [10] Some what similar issue had come up before the Supreme Court in the matter of Poolpandi and others Vs. Superintendent, Central Excise Ors. (1992) 3 SCC 259 wherein during the investigation and interrogation under the provisions of Foreign Exchange Regulations Act 1973 and Customs Act, a prayer was made for assistance of the lawyer. Hon. Supreme Court denying such a prayer had held that:- 11- We do not find any force in the arguments of Mr. Salve and Mr. Lalit that if a person is called away from his own house and questioned in the atmosphere of the customs office without the assistance of his lawyer or his friends his constitutional right under Article 21 is violated. The argument proceeds thus : if the person who is used to certain comforts and convenience is asked to come by himself to the Department for answering question it amounts to mental torture. We are unable to agree. It is true that large majority of persons connected with illegal trade and evasion of taxes and duties are in a position to afford luxuries on lavish scale of which an honest ordinary citizen of this country cannot dream of and they are surrounded by persons similarly involved either direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer has a right to use any method which is not approved by law to extract information from a witness/suspect during examination and in case it is so done, no one can be allowed to break the law with impunity and has to face the consequences of his action. The order dated 20.09.2019 which is against the judgment passed by Hon; ble supreme Court in Pool Pandi V. Superintendent, Central Excise (1992) 3 SCC 259 : 1992 AIR 1795 (SC), therefore, stands modified and it is clarified that presence of a lawyer cannot be allowed to the petitioner at the time of questioning or examination by the officers of the respondent. [12] Having regard to the above position in law and the fact that no such legal right has been pointed out, the submission of the counsel for petitioner to carry out the search and seizure operation in the presence of the petitioner cannot be accepted. [13] Counsel for petitioner has placed reliance upon the judgment of Punjab Haryana High Court dated 15/11/2019 in CWP No.24195/2019 in the case of Akhil Krishan Maggu another Vs. Dy. Director, Directorate General and GST Intelligence and others, but the part of the judgment relied upon by counsel for pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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