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TMI Blog2024 (2) TMI 1087X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner, through its counsel, on 18.08.2021. According to the petitioner, no order was communicated by the first and second respondents after the above mentioned reply was issued. 3. Upon receiving a call from the recovery section of the Goods and Services Tax Department, it is stated that the petitioner wrote to the first and second respondents on 29.11.2022 and informed them of the shifting of the registered office of the petitioner from the original address to No.27, 1st Floor, 10th Avenue, Ashok Nagar, Chennai 600 083. The petitioner also requested for a certified copy of the assessment order issued against the firm. A further communication in this regard was issued on 19.12.2022. A little later, the impugned attachment order was received by the petitioner. The present writ petition was filed in the above facts and circumstances. 4. Learned senior counsel for the petitioner invited my attention to the communication of 24.03.2021 to point out that the said communication was issued on the letterhead of the partnership firm bearing its registered office address and that such address is No.27, First Floor, 10th Avenue, Ashok Nagar, Chennai 600 083. He also referred to the subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be dismissed on the basis of this preliminary objection. In order to substantiate this contention, he relied upon the judgment of the Division Bench of the Allahabad High Court in Agarwal Stone Mill v. U.P.State Electricity Board and Others, Manu/UP/0067/1993. He also relied on the judgment of the Hon'ble Supreme Court in State of Punjab v. Jullunder Vegetables Syndicate, Manu/SC/0296/1965. 8. With regard to the validity of the impugned order, learned counsel submitted that the said order is sustainable as per the Board's Master Circular on Recovery and Write-off of Arrears of Revenue, Circular No.1081/02/2022-CX dated 19.01.2022 (Circular No.1081), whereby proceedings may be initiated either under the Central Excise Act or the Customs Act or the Finance Act. Without prejudice, he submits that Section 142(1)(ii) of the Customs Act, 1962 (The Customs Act) is in pari materia with the Central Goods and Services Tax Act, 2017 (the CGST Act) , particularly Section 142(8)(a) read with Section 174(2)(e) thereof. Since these provisions are in substance not different from Section 142(1)(ii) of the Customs Act, learned senior standing counsel submits that the impugned attachment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, the person aggrieved by the order of attachment. For such reason, the preliminary objection is overruled. 11. The next question that falls for consideration is whether the impugned attachment order is valid. To decide this question, it is necessary to examine the said order closely. The said order was issued under Section 142(1)(c)(ii) of the Customs Act, 1962 read with the Customs Attachment of Property of Defaulters for Recovery of Government Dues) Rules, 1995. The order was issued on 16.02.2023. By that time, the Finance Act, 1994 and, in particular, Chapter V thereof pertaining to service tax stood repealed and replaced by the enactments constituting GST law, such as the CGST Act. The said enactment contains a repeal clause under Section 174 thereof, which saves proceedings initiated under legislations that were repealed by the CGST Act. As regards taxes which had not been recovered, it enables initiation of action for recovery thereof under Section 142 of the CGST Act. Therefore, it was open to the first and second respondents to initiate action under the CGST Act if tax dues had not been recovered under the provisions of the Finance Act 1994. Instead, the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment under section 28B is not paid, transfers or otherwise disposes of his business or trade in whole or in part, or effects any change in the ownership thereof, in consequence of which he is succeeded in such business or trade by any other person, all goods, materials, preparations, plants, machineries, vessels, utensils, implements and articles in the custody or possession of the person so succeeding may also be attached and sold by the proper officer, after obtaining written approval from the [Principal Commissioner of Customs or Commissioner of Customs], for the purposes of recovering the amount so payable by such predecessor at the time of such transfer or otherwise disposal or change.] [(d) (i) the proper officer may, by a notice in writing, require any other person from whom money is due to such person or may become due to such person or who holds or may subsequently hold money for or on account of such person, to pay to the credit of the Central Government either forthwith upon the money becoming due or being held, or at or within the time specified in the notice not being before the money becomes due or is held, so much of the money as is sufficient to pay the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed only the attachment order and prayed that a certified copy of the assessment order be provided. Thus, irrespective of the exact date of receipt of a copy of the assessment order, it appears that the petitioner did not have a copy of the assessment order when the writ petition was filed. The writ petition was filed in March, 2023 and was pending until today. During such period, in view of the relief claimed, it would have been inappropriate for the petitioner to assail the assessment order in parallel proceedings without the leave of this Court. In these circumstances, the interest of justice warrants that the petitioner be provided an opportunity to assail the assessment order. Since the consideration of a challenge to the assessment order would entail an examination of disputed questions of fact, it is more appropriate that the same be undertaken in a statutory appeal. 14. For reasons set out above, this writ petition is disposed of with the following directions: (i) the impugned attachment order is quashed by leaving it open to the first and second respondents to initiate appropriate proceedings in accordance with the CGST Act for the recovery of service tax dues. (ii) Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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