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TMI Blog2021 (3) TMI 1155X X X X Extracts X X X X X X X X Extracts X X X X ..... ay of interim relief, the petitioner is praying for directing the 1st respondent to release the bank guarantee furnished in pursuant to the order at Ext.P12(Series) and for discharge of the bond executed in pursuant to the order at Ext.P9. 3. Search and inspection under Section 67 of the CGST Act was conducted at the premises of the petitioner. It has resulted in provisional attachment of bank accounts of the petitioner vide orders at Exts.P6, P6A and P6B. The petitioner preferred objection to the provisional attachment by communication at Ext.P7. Simultaneously, by filing a writ petition bearing No.16533 of 2020, the petitioner had challenged the attachment of his bank accounts pursuant to the powers conferred by Section 83 of the CGST Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Learned counsel appearing for the petitioner submitted that imposing the condition of furnishing the bank guarantee under Section 83 of the CGST Act, 2017 is totally impermissible and illegal. The search was conducted under section 67 of the CGST Act and the next stage would be issuance of show cause notice under Section 73 or 74 of the said Act, which can be followed by the adjudication proceedings. It is further submitted that if the adjudication goes against the petitioner, then the petitioner can prefer an appeal under Section 107 of the Act and only 10% of the disputed amount can be pre-deposited for filing such appeal and the demand is deemed to be stayed by deposit of this 10% of the disputed amount. The maximum deposit for filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalisation on hearing objections raised, if any, to the same. Now the attachment order has been lifted with a direction to furnish bank guarantee and the petitioner can very well use the amount in the bank account which were earlier attached by the provisional attachment orders at Ext.P6. It is further submitted that challenge to the orders at Ext.P6(series) met with rejection at the hands of this Court and there is no procedural illegality in order at Ext.P9 modifying the provisional attachment. The petitioner can resort to the appellate remedy, if he is factually aggrieved by the modification of provisional attachment. In the wake of the withdrawal of the earlier writ petition, the petitioner cannot be heard to say that the modified order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed sparingly and only on the substantive weighty grounds and reasons. [3] The power of provisional attachment under Section 83 of the Act should be exercised by the authority only if there is a reasonable apprehension that the assessee may default the ultimate collection of the demand that is likely to be raised on completion of the assessment. It should, therefore, be exercised with extreme care and caution [4]The power under Section 83 of the Act for provisional attachment should be exercised only if there is sufficient material on record to justify the satisfaction that the assessee is about to dispose of wholly or any part of his / her property with a view to thwarting the ultimate collection of demand and in order to achieve the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. When discretion is vested in an authority, such discretion has to be exercised in a just and judicious manner, more so when the power conferred under section 83 admittedly is a very drastic power having serious ramifications. Such power having the potential to adversely affect property rights of persons as well as life and liberty under Article 21 of the Constitution of India has to be exercised in a fair and reasonable manner. 27. During the course of the hearing Mr. Sridharan had referred to averments made in the writ petition more particularly to Ground No.11 to submit that petitioner had already offered to respondent No.2 its land, building and plant and machinery having estimated gross value of approximately Rs. 44 cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty has no remedy of appeal under Section 107 of the CGST Act in the matter. Therefore, in the light of ratio of judgments in the matter of Valerius Industries and AJE India Private Limited, I am of the considered opinion that the order directing furnishing of the bank guarantee needs to be stayed till disposal of the writ petition, by directing the petitioner to execute the undertaking that he will not sell, alienate or dealt with any of his assets as seen from the balance sheet produced by him at Ext.P16. Therefore the order:- During the pendency of the petition, the impugned direction contained in Clause 2(a) of Ext.P9, requiring the petitioner to furnish security in the form of the bank guarantee is stayed and the petitioner is directe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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