Bombay High Court, while acknowledging a plea via Originative Trading Private Limited, directed the Commissioner to file the certified copy of the opinion originated by the Commissioner prior to furnishing the objection with respect to the show-cause notice (SCN) for provisional attachment under the CGST Act.
The applicant, Originative Trading Private Limited has bought the goods locally through the wholesale trader which are consolidated on the level of the wholesale trader and hence are dispatched to the warehouse of the logistics firm, and from there the goods are sent to CFS terminals at the customs stations. The mentioned goods are released via export duty exclusively after the left verification by the customs officers.
On the date 18th Feb 2021, respondent no.3 has executed the investigation with respect to the applicant and has conducted the search at the premises at that time the original documents were seized. On 23rd Feb 2021 inside the investigation, CBIC furnished the GST circular showing the information for the field formation for the attachment beneath section 82 of the CGST act.
“The petitioner challenged the constitutional validity of the circular dated 23rd February 2021 as ultra vires the provisions of the Central Goods and Services Tax Act, 2017 or with an alternative plea to read down the circular dated 23rd February 2021 to make the recording of reasons or grounds of attachment mandatory in the attachment order or Form DRC-22 issued in terms of Rule 159(1) of the CGST Rules.”
The applicant mentioned that the given circular furnished that the commissioner would record these opinions on file and will not talk to the individual subjected to tax would not amount to an order of provisional attachment under section 83 of the CGST Act. Justices R.D. Dhanuka & S.M.Modak sees that when the party with respect to whom this order is given would be the same on file, about the order the aggrieved party will not know and also not holds any solution to challenge the same order.
Bench mentioned that from our context, the applicant will be permitted for copying the opinion made by the commissioner prior to furnishing the objection. The objection asked by the learned counsel for the respondents that the applicant used to furnish the appeal with respect to the order of provisional attachment and the same application is not able to maintain on the same basis, the applicant has challenged the validity of the circular administered by the respondents, the same shall not be challenged prior to the Appellate Authority. We are hence not slanted to deny the writ petition on the basis of another solution available to the petitioner beneath the provisions of the CGST Act, the bench said.
