TMI Blog2023 (5) TMI 1125X X X X Extracts X X X X X X X X Extracts X X X X ..... n should be granted in a case where there is alternative statutory remedy was called upon for determination before the Hon ble Supreme Court in relation Section 13 and Section 17 of the SARFAESI Act. In MARDIA CHEMICALS LTD. VERSUS UNION OF INDIA [ 2004 (4) TMI 294 - SUPREME COURT ] , it was observed by the Hon ble Supreme Court while dealing with a constitutional challenge to the validity of Section 17 of the SARFAESI Act that borrowers cannot be left remediless in this case they have been wronged by a secured creditor, bank or financial institutions and that borrowers have a right to approach the DRT after measures are taken against the borrower under Section 13 (4) of the Act and the same provides reasonable protection to the borro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egation has been made on the basis of the Samsung report found in Samsung MCS portal. b. E-invoice has been generated after the EGM date which concludes that export is false. c. The goods purchased from the M.I.Telcom is a false transaction as the e-way bill generated for transportation is incorrect. In support of the same, a consent has been obtained from Shyamoli Poribahan Gree Loine Travels. Copy of the DRC-01A form dated 25/03/2023 is annexed herewith and marked as Annexure-P3 . It was further alleged: a. Mobile phones exported in the month of October 2022 has found to be activated in Indian territory after the date of EGM, therefore, it is a false export. The said allegation has been made on the basis of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the cash-credit facility is not a debt to be attached by the respondent authority. Learned counsel appearing for the petitioner further refers to another decision of the Division Bench of Gujarat High Court reported in 2022 (64) GSTL 482 (Guj) wherein it is specifically held that the law is well-settled that a cash-credit account of the assessee cannot be provisionally attached in exercise of powers under Section 83 of the CGST Act. Referring to a decision of the Hon ble Supreme Court in Radha Krishan Industries Vs. State of Himachal Pradesh reported in 2021 (48) GSTL 113 (SC). It is submitted by the learned advocate for the petitioner that the order of provisional attachment before assessemnt order should be imposed in rarest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 said objective, the attachment should be of the properties and to that extent, it is required to achieve this objective. (5) The power under Section 83 of the Act should neither be used as a tool to harass the assessee nor should it be used in a manner which may have an irreversible detrimental effect on the business of the assessee. (6) The attachment of bank account and trading assets should be resorted to only as a last resort or measure. The provisional attachment under Section 83 of the Act should not be equated with the attachment in the course of the recovery proceedings. (7) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sub-Rule 5, the remedy whose property is attached. Thus, it is contended by the learned advocate for the respondent that where there is efficacious and speedy remedy in the statute, such remedy cannot be bypassed and no relief should be granted to the petitioner in this regard under Article 226 of the Constitution of India. The issue as to whether relief under writ jurisdiction should be granted in a case where there is alternative statutory remedy was called upon for determination before the Hon ble Supreme Court in relation Section 13 and Section 17 of the SARFAESI Act. In Mardia Chemicals Limited Vs. Union of India (2004) 4 SCC 311, it was observed by the Hon ble Supreme Court while dealing with a constitutional challenge to the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aggrieved person and that this Rule applies with greater rigour in matters involving recovery of public money and the dues of the bank and other financial institutions. In the instant case, it relates to recovery of GST. Subsection 5 of Section 159 clearly gives adequate power to the petitioner to file objection for releasing the bank account or, in the instant case cash-credit facility. In view of such circumstances, when there is efficacious relief in the statute itself, this Court is of the view that the petitioner should adopt such efficacious relief and this Court is not inclined to afford any relief under Article 226 of the Constitution. The instant writ petition is thus, dismissed. Urgent photostat certified copy of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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