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TMI Blog2019 (12) TMI 1116X X X X Extracts X X X X X X X X Extracts X X X X ..... trading various commodities. The petitioners are listed with Bombay Stock Exchange and are duly registered under the GST Acts. According to the petitioners, they duly file returns and discharge tax liability under the GST Acts. 3. It is the case of the petitioners that they entered into certain transactions of sale of goods on "as is where is" basis in the year 2017-18. The goods were purchased from registered persons under the GST Acts on payment of tax under the GST Acts and they were in turn sold to other registered persons. Input tax credit was claimed of tax paid on purchases which was utilized towards payment of output tax liability and the differential tax amount was paid through electronic cash ledger. 4. On 27.9.2018, search proceedings came to be conducted by the Central Goods and Services Tax Department at the premises of the petitioners. An inquiry was made regarding the trading transactions of the petitioners and evidence was demanded regarding the purchase and sale transactions. The petitioners intimated that the goods were sold on "as is where is" basis and thus, there was no evidence of movement of goods; however, the fact is that the goods were purchased from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 83 of the GST Acts to submit that pendency of proceedings under the sections referred to therein is a sine qua non for exercise of powers under the said section. It was submitted that in the impugned orders of provisional attachment it is stated that the attachment was being made during the pendency of proceedings under section 67 of the GST Acts. It was pointed out that in this case, search proceedings were conducted at the premises of the petitioners on 27.9.2018 and thereafter, there was a visit by the respondents on 1.4.2019 which led to the arrest of the second petitioner. Thereafter, there has been no search at the premises of the petitioners. Thus, no proceedings are pending under section 67 of the GST Acts. It was submitted that therefore, the action of provisionally attaching the bank accounts of the petitioners in purported exercise of powers under section 83 of the GST Acts despite the fact that on such date there was no pendency of search proceedings under section 67 of the GST Acts, is wholly without jurisdiction and illegal. 8.1 Next it was submitted that section 83 of the GST Acts is a drastic provision which can be invoked only if the authorities form an opini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voices and no goods were actually received by them. It was pointed out that during the course of inspection at the premises of the petitioners on 1.4.2019, the statement of Shri Sandeep Agarwal, Chairman and Managing Director of the company came to be recorded. During the course of investigation it was found that the first petitioner had availed of the input tax credit of Rs. 88.78 crores on the strength of invoices issued by eighteen firms without having ever received the goods mentioned therein and the first petitioner also issued invoices amounting to Rs. 88.94 crores to twenty seven firms without actual supply of the goods mentioned therein so as to enable the said twenty seven firms to avail illicit input tax credit without any physical movement of goods. 9.1 It was submitted that during the course of his statement on 30.11.2018, the petitioners had agreed to reverse the GST credit of Rs. 32.79 crores taken on the strength of invoices issued by M/s. Emmar Trading Private Limited and M/s. CKP Industries where they had received only invoices and no physical goods were received by them. However, the GST amount is still unpaid. 9.2 It was submitted that the act of the second p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present purpose reads as under:- "67 Power of inspection, search and seizure.- (1) Where the proper officer, not below the rank of Joint Commissioner, has reasons to believe that-- (a) a taxable person has suppressed any transaction relating to supply of goods or services or both or the stock of goods in hand, or has claimed input tax credit in excess of his entitlement under this Act or has indulged in contravention of any of the provisions of this Act or the rules made thereunder to evade tax under this Act; or (b) any person engaged in the business of transporting goods or an owner or operator of a warehouse or a godown or any other place is keeping goods which have escaped payment of tax or has kept his accounts or goods in such a manner as is likely to cause evasion of tax payable under this Act, he may authorise in writing any other officer of central tax to inspect any places of business of the taxable person or the persons engaged in the business of transporting goods or the owner or the operator of warehouse or godown or any other place. (2) Where the proper officer, not below the rank of Joint Commissioner, either pursuant to an inspection carried out under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken; however, such inquiry or other proceedings are not under section 67 of the GST Acts and hence, it cannot be said that any proceedings are pending under section 67 of the GST Acts. 13. In this case, the orders of provisional attachment have been made under section 83 of the GST Acts which reads as under:- 83 Provisional attachment to protect revenue in certain cases. - (1) Where during the pendency of any proceedings under section 62 or section 63 or section 64 or section 67 or section 73 or section 74, the Commissioner is of the opinion that for the purpose of protecting the interest of the Government revenue, it is necessary so to do, he may, by order in writing attach provisionally any property, including bank account, belonging to the taxable person in such manner as may be prescribed. (2) Every such provisional attachment shall cease to have effect after the expiry of a period of one year from the date of the order made under sub-section (1). 14. On a plain reading of section 83 of the GST Acts, it is clear that a sine qua non for exercise of powers thereunder is that proceedings should be pending under section 62 or section 63 or section 64 or section 67 or se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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