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2019 (8) TMI 627 - HC - GSTPower of arrest - assessment and adjudication of alleged evasion of GST as contemplated under Section 61, Section 73 of under Section 74 of the Central Goods and Service Tax Act, 2017 - HELD THAT - The powers of arrest under Section 69 of the Act, 2017 are to be exercised with lot of care and circumspection. Prosecution should normally be launched only after the adjudication is completed. To put it in other words, there must be in the first place a determination that a person is liable to a penalty . Till that point of time, the entire case proceeds on the basis that there must be an apprehended evasion of tax by the assessee. The emphasis has been laid on the safeguards as enshrined under the Constitution of India and in particular Article 22 which pertains to arrest and Article 21 which mandates that no person shall be deprived of his life and liberty for the authority of law. Let Notice be issued to the respondents returnable on 18th September, 2019.
Issues:
- Relief sought against actions under Section 69 and 132 without due procedure - Reliance on Delhi High Court and Madras High Court decisions - Interpretation of powers of arrest under Section 69 of the Act, 2017 - Emphasis on safeguards under the Constitution regarding arrest and liberty Analysis: The writ applicant sought relief against actions by the respondents under Section 69 and 132 without following due procedure of law for the assessment and adjudication of alleged GST evasion. The counsel for the applicant relied on decisions from the Delhi High Court and the Madras High Court to support their case. The Delhi High Court decision, affirmed by the Supreme Court, emphasized that the power of arrest under the Finance Act should be used cautiously and not presumed without following the required procedures. It highlighted the need for a determination of habitual offender status before launching prosecution. The decision stressed the importance of accessing relevant records and following due process before taking extreme steps like arrest. The powers of arrest under Section 69 of the Act, 2017 were interpreted to require careful consideration and circumspection. Prosecution should typically follow adjudication, and there must be a determination of liability to penalty before proceeding. The decisions referred to underscored the constitutional safeguards, particularly Articles 21 and 22, related to arrest and protection of life and liberty. They drew on the Supreme Court's ruling in D.K. Basu vs. State of West Bengal to support their arguments. The High Court issued notice to the respondents, with a returnable date set for September 18, 2019. It directed that no coercive steps of arrest should be taken against the writ applicant in the interim. The matter was scheduled for a final hearing on the returnable date, with the State urged to prepare considering the significant issues raised in the writ application.
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