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TMI Blog2020 (12) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacture and supply of carbonated fruit drinks, such as, Big Cola, Big Orange Cola, Big Lemon and similar other products. Petitioner has been manufacturing such fruit juice based drinks since December, 2017 having more than 5% juice content in apple drink and 2.5% in respect of lemon drink. Petitioner has been classifying such goods under Tariff Item 2202 99 20 of the Customs Tariff Act, 1975 and specified at Serial No.48 under Schedule-II as "fruit pulp or fruit juice based drinks" of the Central Government Notification dated 28th June, 2017 taxable at the rate of 12%. According to the petitioner, the above classification is in conformity with the judgment of the Supreme Court in case of Parle Agro (P) Ltd. Vs. Commissioner of Commercial Taxes, Trivandrum, 2017(352) ELT 113 and also of the Larger Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) in the case of Brindavan Beverages Private Limited Vs. Commissioner of Customs, which were rendered prior to introduction of Goods and Services Tax (GST). It is stated that in respect of one of the group companies of the petitioner, namely, M/s Anutham Exim Private Limited, Commissioner of Customs (Appeals), Kolka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise of the powers conferred under Section 83 of the Act, I Manpreet Arora, Commissioner CGST & CX, Raigad hereby provisionally attach the aforesaid accounts. No debit shall be allowed to be made from the said account or any other account operated by the aforesaid person on the same PAN without the prior permission of this department. sd/-illegible 19.11.2020. (Manpreet Arora) Commissioner, CGST & CX, Raigad." 8. Petitioner filed objection before respondent No.2 on 25th November, 2020 against such provisional attachment. Though a personal hearing was granted on 1st December, 2020, respondent No.2 told the representative of the petitioner that provisional attachment would not be lifted. 9. Aggrieved, petitioner has preferred the present writ petition. 10. In response to notice, respondent Nos.1 and 2 have filed a common affidavit. Stand taken in the affidavit is that investigation under section 67 of the CGST Act was initiated against the petitioner on the ground of misclassification of products thereby evading payment of due GST. Petitioner had complied with the summons issued from time to time and had submitted the requisite documents and information. Investigation revea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat no debit should be allowed to be made from the said accounts or any other accounts operated by the petitioner without the prior permission of the department. 16. Since provisional attachment of bank accounts have been made under section 83 of the CGST Act, the same may be examined. For ready reference section 83 is quoted hereunder:- "Section 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 subsection (1)." 17. Sub-section (1) of section 83 says that 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 Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of any of the provisions of the CGST Act or the rules made thereunder to evade tax under the CGST Act, he may authorize in writing inspection of any place of business of the taxable person. 21. A conjoint reading of the relevant provisions of section 67 and section 83 of the CGST Act would indicate that the proper officer must have reasons to believe that the taxable person has suppressed any taxable transaction to evade payment of tax. It is not necessary for us at this stage to delve into the meaning of the expression reasons to believe employed in section 67 which has its own connotation in fiscal statutes. Suffice it to say, requirement of section 67(1)(a) is that the proper officer should have reasons to believe that the taxable person has suppressed any taxable transaction to evade payment of tax. 22. Having discussed the above, we may advert to the admitted facts of the present case. It is quite clear that petitioner had disclosed the details of its goods and had applied the classification which it thought was appropriate. On that basis it had filed its CGST returns and had been assessed. It is not the case that petitioner has defaulted in payment of tax as per its retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced by Mr. Mishra which discusses about investigation under section 67 and therefore, the need to take action under section 83. Whether recourse to section 83 is warranted at this stage has not been dealt with in the record. Merely because there is a proceeding under section 67 would not mean that recourse to such a drastic power as under section 83 would be an automatic consequence, more so when petitioner has cooperated with the investigation. That apart, section 83 speaks of provisional attachment of any property including bank account. The record is silent as to whether any attempt has been made for provisional attachment of any property of the petitioner and instead why the bank accounts should be attached. Besides, by use of the word "may" in sub-section (1) of section 83 Parliament has made it quite clear that exercise of such a power is discretionary. When discretion is vested in an authority, such discretion has to be exercised in a just and judicious manner, more so when the power conferred under section 83 admittedly is a very drastic power having serious ramifications. Such power having the potential to adversely affect property rights of persons as well as life an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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