2020 (2) TMI 740 - HC - GST

GST evasion / input tax credit (ITC) - Jurisdiction - power of inspection, search and seizure of Police / authorities - input tax credit availed in excess of the entitlements - Section 67 of the GST Acts - HELD THAT - From the provisions of Section 67 of the AGST Act and 100 and 101 of the Customs Act, a process for search, seizure, confiscation etc for violating any of the provisions of the AGST Act or the Customs Act can only be initiated upon having reasons to believe by the proper or appropriate officer that a person concerned was involved in violation of any of the provisions of the GST Acts or the Customs Act - In the instant case, the documents made available on record so far as it relates to violation of the provisions of the AGST Act are not being relied upon by the respondents to indicate any such violation of the provisions of the AGST Act. What is contended is that some such documents are either fraudulent or it contains forged signatures resulting in offences under Sections 120(B)/420/467/471 of the IPC. If the authorities under the AGST Act of the State of Assam are of the view that the appellants are required to be proceeded with or prosecuted under the AGST Act, it would be appropriate to invoke the provisions of Section 67 of the AGST Act and proceed accordingly. But without invoking the provisions of Section 67 of the AGST Act and following the procedure prescribed therein, it would be inappropriate to allow the police authorities of Assam to continue with the detention and the seizure of the trucks containing the areca nuts on the plea that the appellants have violated some or any of the provisions under the AGST Act. The detained/seized goods be retained by the police authorities of Assam for a period of seven days from today. In the meantime, the GST authorities of the Government of Assam, the police authorities of the Government of Assam and the Customs authority of the Customs Department, Government of India shall take their respective decisions on how to proceed with the matter of the detained/seized trucks of areca nuts within the period of seven days - Appeal disposed off.

Summary

Issues Involved:
1. Legality of the seizure and detention of trucks carrying areca nuts.
2. Jurisdiction of police authorities under the GST Act and the Customs Act.
3. Compliance with procedural requirements under the GST Act, Customs Act, and CrPC.
4. Bio-security concerns related to the seized areca nuts.

Detailed Analysis:

1. Legality of the Seizure and Detention of Trucks Carrying Areca Nuts:
The police officials detained 26 trucks carrying areca nuts on 21.08.2019 and 22.08.2019 due to suspicions of improper documentation. The police investigation revealed potential manipulation of records and forgery, leading to an ejahar (FIR) on 03.09.2019. The core allegations included evasion of GST dues and submission of forged documents. The appellants sought a declaration that the seizure was illegal and demanded the release of the goods.

2. Jurisdiction of Police Authorities under the GST Act and the Customs Act:
The appellants argued that under Section 67 of the Assam Goods and Services Tax Act, 2017 (AGST Act), only a proper officer not below the rank of Joint Commissioner could conduct search and seizure operations. The police authorities contended that under Section 4(2) of the CrPC, they could investigate any offence, including those under the GST Act, and seize property under Section 102 of the CrPC. The learned Single Judge concluded that police could investigate IPC offences even if they overlapped with GST or Customs Act violations but should hand over investigations related to Customs Act violations to customs authorities.

3. Compliance with Procedural Requirements under the GST Act, Customs Act, and CrPC:
The court emphasized that any search, seizure, or confiscation under the GST Act or Customs Act must be preceded by a "reason to believe" recorded by the proper officer. For GST violations, the proper procedure under Section 67 of the AGST Act must be followed. For Customs Act violations, Sections 100 and 101 outline the required procedures for search and seizure by authorized officers. The police's seizure under Section 102 of the CrPC must be reported to the Magistrate as per Section 102(3). The court found that without following these procedures, the detention and seizure by the police would be unauthorized.

4. Bio-security Concerns Related to the Seized Areca Nuts:
The Directorate of Revenue Intelligence (DRI) indicated that the areca nuts were smuggled from Myanmar, compromising revenue and bio-security. The Ministry of Agriculture and Farmers Welfare reported that the areca nuts posed a phytosanitary risk and recommended destruction or deportation of the consignment. The court acknowledged the bio-security threat and ruled that the Customs Department should handle the matter following the Customs Act's provisions.

Conclusion:
The court provided a seven-day window for the GST authorities, police, and customs authorities to decide on proceeding with the matter according to their respective laws. If no action was taken within this period, the detention and seizure would be declared illegal. The judgment emphasized strict adherence to procedural requirements under the GST Act, Customs Act, and CrPC to ensure lawful investigation and prosecution. The appeals were disposed of with modifications to the initial judgment, ensuring compliance with legal provisions and addressing bio-security concerns.