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TMI Blog2015 (12) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... quiry was instituted by the respondent under Section 14 of the Central Excise Act. In response thereto, the petitioners appeared and supplied the necessary information and documents. A Writ Tax No. 183 of 2015 was filed questioning the enquiry instituted under Section 14 of the Central Excise Act, which was dismissed by a judgment dated 10th March, 2015. It appears that thereafter the directors of the petitioner's company appeared and their statements were recorded. During the course of the enquiry, it appears that the respondents were insisting that the Cenvat credit availed by the petitioner should be reversed. In spite of these oral directions, the Cenvat credit was not reversed and accordingly a show cause notice dated 20th October, 2015 was issued under Section 73 of the Act directing the petitioner to show cause within 30 days from date of the receipt of the show cause notice as to why recovery should not be made to the tune of Rs. 1,15,27,245/- towards the Cenvat credit that was wrongly availed. This show cause notice was issued by the Commissioner of Service Tax, respondent no.2. It is contended that the show cause notice was received by the petitioner on 21st October, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity to such person to make submissions in this regard, within fifteen days of service of such notice. (3) Upon consideration of submissions made by such person, in writing or in person or both, the Commissioner of Central Excise may pass an order in writing to attach provisionally any property belonging to such person: Provided no such order shall be issued to attach the personal property of Proprietor or Partners or Directors, as the case may be. 4. The Property that can be attached. (1) The provisional attachment of property shall be to the extent it requires to protect the interest of revenue, that is to say, the value of property attached shall be of value as nearly as may be equivalent to that of the amount of pending revenue against such persons. (2) The movable property belonging to such person shall be attached only if the immovable property available for attachment is not sufficient to protect the interest of revenue. From a perusal of Rule 3, it is clear that the Assistant Commissioner or Deputy Commissioner is required to be satisfied that it is necessary or expedient for the purpose of protecting the interest of revenue to attach provisionally any pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Officer entertains the reasonable belief that the notice would dispose of, or remove, the property and the sources of his information, if any, should be clearly stated while seeking the approval of the Commissioner of Central Excise. Normally, the proposal should be forwarded within one month's period of the issue of show cause notice. It may also be noted that appropriate disciplinary action shall be initiated against the officers who may be found to exercise the powers of provisional attachment of property frivolously and without sound reasons. [ Recommendation of the Standing Committee on Finance (Fourteenth Lok Sabaha) in its 27th Report. (iv) The Commissioner of Central Excise, on receipt of proposal, or on his own, if he is satisfied that circumstances of the case justify provisional attachment, may serve a notice on the person on whom a notice is served under Section 73 or 73 A of the Act, requiring such person to make submissions, in writing or in person or both, within fifteen days of serving of the notice as to why the property belonging to such person, and as may be specified in the notice, be not provisionally attached. The said notice should also s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty and perusal of the satisfaction recorded in the original that without waiting for a reply to the show cause notice, and without giving any opportunity and without giving any notice, the bank accounts were attached in gross violation of Rule 3 of the Rules of 2008 read with paragraph 2 (iii) of the Circular dated 1st July, 2008. It is mandatory for the authority to issue a notice giving 15 days' time to reply before attaching a property. In the instant case, we find that the proposal submitted by the Deputy Commissioner, Respondent No. 3 clearly indicated that first the property should be attached and thereafter notice should be issued. This proposal was approved by the Commissioner without any application of mind and without considering the provision of the Rules and the circular. We also find that proceedings under Section 73 of the Act had been initiated and a show cause notice had already been issued to the petitioner. Action for attachment would only have been initiated by the Commissioner and could not have been initiated by the Deputy Commissioner. Such action on the part of the Deputy Commissioner is patently illegal and without jurisdiction. A perusal of the satisf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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