TMI Blog2021 (9) TMI 1111X X X X Extracts X X X X X X X X Extracts X X X X ..... he present case was a fit case for invocation of section 83 of the CGST Act. It was found that as per the balance-sheet for the year 2019-20, the petitioner had declared the value of tangible assets or fixed assets as ₹ 8.53 Cr. approximately. Since the dues were far more than the value of the immoveable property, it was decided to continue attachment of the bank accounts. Mr. Raichandani has contended that the orders of provisional attachment ought to have been lifted bearing in mind the value of the assets and also in view of the law that pre-deposit of 10% is required if an appeal were preferred against the final order. We do not think that at this stage this issue ought to be considered, in view of the order proposed. The grounds on which the judicial review is available are well established. Non-consideration of relevant materials and consideration of extraneous matters together with non-access of the part affected to materials relied on in reaching conclusions, if substantiated, would provide sufficient ground for judicial review. In the present case, the provisional order dated May 21, 2021 is unsustainable - the Commissioner is directed to de novo consider the obje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... returnable in four weeks. During the pendency of the writ petition, two separate orders dated April 27, 2021 were passed by the Commissioner, CGST Central Excise, Raigad Commissionerate, seeking to provisionally attach the property of the petitioner under section 83 of the CGST Act. The petitioner s bankers, HDFC Bank and ICICI Bank, were directed not to allow debit to be made from the accounts maintained with such banks or any other account operated by the petitioner without prior permission of the department. 7. When the writ petition was listed on May 6, 2021, counsel appearing for the petitioner submitted that objection to the orders provisionally attaching the bank accounts would be filed before the Commissioner under Rule 159 (5) of the CGST Rules. Accordingly, it was observed by the Bench that the Commissioner may take a decision thereon within a period of two weeks from the date of submission of objection. Hearing was, accordingly, adjourned till June 29, 2021. 8. Availing the leave granted by the Bench, the petitioner objected to the orders of provisional attachment by its representations dated May 7 and 17, 2021 and sought for revocation thereof on diverse ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner has indicated in paragraph 2 of the order that the petitioner s authorized representative was briefed about the reasons as to why the said chemical products should be classified under Chapter 2915/2916 instead of 1516, we have not noticed any discussion in this regard in the impugned order. Reiteration that the petitioner s representative was briefed about the reasons is found in paragraph 7(vi) of the order too; however, again, there are no reasons assigned in support of the version of the Commissioner. 14. The order of the Commissioner records that pursuant to initiation of investigation under section 67 read with section 74 of the CGST Act, provisional attachment of the petitioner s bank accounts has been made only with the intention to protect the large amount of revenue sought to be evaded by the petitioner on account of willful misclassification of goods (emphasis supplied). At paragraph 7(ii), the Commissioner recorded that in course of investigation, it has been observed that there was no business activity on behalf of the petitioner since November, 2020. However, this assertion is also disputed by Mr. Raichandani by referring to paragraph G.1 at page 13e of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the contention is that not a single evidence or data, as claimed, was shown to the petitioner. On the contrary, it is asserted that by referring to authorities, the petitioner sought to persuade the Commissioner to hold in its favour, which unfortunately was ignored. The positive statements made in paragraph G.2 of the writ petition have been evasively denied by the respondents in paragraph 30 of their affidavit-in-reply. We reiterate that the evidence referred to in paragraph 7(iii) of the impugned order has not been annexed to the reply affidavit and, therefore, it is difficult to accept the version as recorded in such paragraph. Even otherwise, if at all it is a fact that the petitioner has not cooperated with the investigation, that by itself would not preclude the respondents from completing it with promptitude in accordance with law. However, this cannot constitute a valid reason for continuing the orders of provisional attachment. 16. The next reason assigned in paragraph 7(iv) is that local manufacturers engaged in the production of similar chemical products that the petitioner produces have been classified under CTH 29, attracting IGST and GST @ 18% each, for the dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reasons assigned therein, and reasons cannot be supplemented by an affidavit or otherwise when such order is challenged in a Court. We are, therefore, not in a position to sustain the findings of the Commissioner by looking at the reasons given in the affidavit-in-reply. 18. Paragraph 7(v) of the impugned order records the conclusion of the Commissioner that power under section 83 of the CGST Act has been correctly invoked. Since proceedings are pending and we do not propose to interdict exercise of power under section 83 at this stage, no further discussion on paragraph 7(v) is considered necessary. 19. We have referred to the contents of paragraph 7(vi) of the impugned order at an earlier part of this judgment. In view thereof, any further dilation is not required. 20. At paragraph 7(vii) of the impugned order, the Commissioner upon consideration of the opinion of the Institute of Chemical Technology, Mumbai (hereafter the Institute , for short), rejected the same by observing that he did not find the report to be proper . The comments made for rejecting the report would tend to suggest that the Commissioner has good deal of knowledge in the subject of chemical scie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion that the present case was a fit case for invocation of section 83 of the CGST Act. It was found that as per the balance-sheet for the year 2019-20, the petitioner had declared the value of tangible assets or fixed assets as ₹ 8.53 Cr. approximately. Since the dues were far more than the value of the immoveable property, it was decided to continue attachment of the bank accounts. Mr. Raichandani has contended that the orders of provisional attachment ought to have been lifted bearing in mind the value of the assets and also in view of the law that pre-deposit of 10% is required if an appeal were preferred against the final order. We do not think that at this stage this issue ought to be considered, in view of the order proposed. 24. The grounds on which the judicial review is available are well established. Non-consideration of relevant materials and consideration of extraneous matters together with non-access of the part affected to materials relied on in reaching conclusions, if substantiated, would provide sufficient ground for judicial review. In the present case, we find that the provisional order dated May 21, 2021 is unsustainable for the reasons discussed above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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