2022 (2) TMI 1107 - HC - GST

Summon Order - not arresting petitioners in pre-inquiry proceeding in pursuance of the summon - seeking directions to respondent authority not to arrest to petitioner in pursuance of notice issued under section 70 of CGST Act - HELD THAT - This Court is not inclined to follow the orders passed by the learned Single Judge sitting in the Coordinate Bench, which do not constitute a binding precedent. However, keeping in view the apprehension of the petitioner, the submissions made by Mr. Ashutosh Posti, learned counsel for the petitioner and the submissions made by Mr. Shobhit Saharia, learned counsel for the respondents, this Court observes that the petitioner shall appear before the Authority summoning him for recording his statement. However, this Court further directs that before taking any steps to arrest, the Commissioner of CGST, Dehradun shall comply the provisions of Sub-Section (1) of Section 69 in letter and spirit. In other words, he must come to a definite conclusion that the petitioner has committed the offence as enshrined thereon, on the basis of credible materials and before authorizing any person to arrest the petitioner and the commissioner must record the reasons and material that he took into consideration in authorizing the officer to arrest him. A violation of this order shall be considered contempt of this Court. On the submissions of the learned counsel for the petitioner regarding denial of proper and legal representation at the time of Inquiry or recording of statement under Section 70 of the CGST Act, it is hereby directed that if the petitioner so wants, he may take a qualified person to help him in explaining the details. He shall not be detained in the office of the Commissioner, who is the summoning authority beyond the reasonable working hours. Application disposed off.

Summary

Issues:
Challenging a summoning order in a writ petition; legality of quashing a summoning order; maintaining legal representation during inquiry under Section 70 of the CGST Act.

Analysis:
1. The petitioner sought writs to quash the summoning order dated 10.01.2022 and prevent arrest during pre-inquiry proceedings. The Court noted the challenge to the summoning order but deemed a writ to quash it as not maintainable. The Court disregarded previous stay orders from a Coordinate Bench, stating they do not set a binding precedent. However, considering the petitioner's concerns, the Court directed the petitioner to appear before the summoning Authority, emphasizing compliance with Section 69(1) of the CGST Act before any arrest steps are taken.

2. The Court emphasized that the Commissioner of CGST must ensure a definite conclusion of the petitioner's offense based on credible evidence before authorizing any arrest. The Commissioner must document the reasons and materials considered for the decision. Any violation of this directive would be treated as contempt of court. This directive aimed to safeguard the petitioner's rights and prevent arbitrary arrests without proper justification.

3. Addressing the issue of legal representation during inquiry under Section 70 of the CGST Act, the Court directed that the petitioner could have a qualified person assist in explaining details if desired. Additionally, the petitioner should not be detained beyond reasonable working hours during the inquiry process. This directive aimed to ensure the petitioner's right to legal representation and prevent undue delays or restrictions during the inquiry proceedings.

4. Ultimately, the Court disposed of the writ application, having provided detailed directives to balance the petitioner's rights and legal procedures. The judgment focused on ensuring procedural fairness, adherence to statutory requirements, and protection of the petitioner's rights during the inquiry process under the CGST Act.