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TMI Blog2022 (7) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... o.1 on 11.12.2019 and the subsequent summons dated 24.02.2022 vide CBIC-DIN- 202202CC00000000F565/21709 and CBIC-DIN-202202CC00000 000F565/21710 to the Petitioner No.2 and 3 respectively as illegal, arbitrary and unconstitutional; B. Direct the Respondents not to cause the arrest of any of the directors/employees/agents of Petitioner No.1 including the Petitioner No.2 to 4 herein; and C. Pass such further order or orders as this Hon'ble Court deems fit and proper in the circumstances of the case. 3. It is stated that petitioner No.1 is a Private Limited Company incorporated under the Companies Act, 1956 and engaged in the business of steel manufacturing for the last 28 years. It is registered under the Goods and Services Tax (GST) authorities in the State of Telangana and has been filing its tax returns and paying due taxes. Petitioner No.1 has been recognised as the highest GST payer in the State of Telangana insofar TMT Steel Industry is concerned. Petitioner No.2 is the Director of petitioner No.1. On the other hand, petitioner No.3 is the Proprietor of a concern called M/s.Gautam Trading Company. Petitioner No.3 is a relative of petitioner No.2. Though petitioner No.3 is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt No.4 on 08.03.2022 at 11.30 a.m. 10. Apprehending their arrest on appearance, petitioners have filed the present writ petition seeking the reliefs as indicated above. 11. On 04.03.2022, this Court directed that petitioners should appear before respondent No.4 on 08.03.2022 at 11.30 a.m. physically as was directed earlier. Further Court directed that since it was hearing the matter no coercive steps should be taken by the respondents against the petitioners on the petitioners' appearance before respondent No.4 on 08.03.2022. 12. The same order has since been continued from time to time. 13. Respondents have filed a common counter affidavit. While elaborate statements have been made regarding non-maintainability of the writ petition and about the conduct of the petitioners, the stand taken by the respondents is that as per investigation conducted so far, it is a case of evasion of GST to the tune of Rs.9.00 crores. Allegation is that from the facts unearthed during the investigation it has come to light that petitioner No.1 and its associated entities had indulged in huge evasion of GST to the tune of Rs.9.00 crores approximately which was further likely to increase. 13.1. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the past events. He has referred to Section 107(6) of the CGST Act and submits that even under that provision a person aggrieved by an order passed by the adjudicating authority may prefer appeal before the appellate authority and two pre-conditions for filing such appeal are that the appellant should pay the entire amount of tax, interest etc relatable to the impugned order as is admitted by him and secondly he should pay a sum equal to 10 per cent of the disputed tax in relation to which the appeal has been filed. He submits that as on today according to the respondents, the alleged tax evasion is to the tune of Rs.9.00 crores. Petitioners have deposited Rs.4.10 crores which is much more than 10 per cent of the disputed amount which the appellant is required to pay for admission of appeal. In this connection, he has placed reliance on an interim order dated 06.08.2019 by the Supreme Court in the SLP No.6834 of 2019 (C.Pradeep v. Commissioner of GST and Central Excise, Selam). 17. In his reply submission, Mr. Ojha has drawn the attention of the Court to the averments made by the respondents in the counter affidavit as well as in the sur-rejoinder. He submits that conduct of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsions. 63. While the petitioners allege that there was use of violence and coercion against the petitioners and their employees by respondents 5 to 9 during the said search operations, the respondents deny the same and allege that it was the petitioners and their employees who had obstructed the search operations and allegedly assaulted the 5th respondent. This is vehemently denied by the petitioners. 64. Normally these disputed questions of fact are not to be gone into in a Writ proceeding under Art.226 of the Constitution of India. 65. But we cannot ignore the material such as Annexure P-4 which is the Out patient Discharge advice of Sunshine Hospital given at 7.45 pm after treatment of the 3rd petitioner by the emergency physician there on 11.12.2019 which stated that 'assault today; injury to the left thigh; unable to walk and bear weight; .. blunt injury at left thigh'. 66. This suggests that the 3rd petitioner was injured to such a degree that he was unable to walk and required medical treatment. 67. That the 3rd petitioner was with respondents 5 to 9 on that day from the morning is admitted by them in the counter affidavit filed by respondents 1 to 4 and 10, thoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olice officials, they cannot claim any immunity if they indulge in acts of physical violence against persons they suspect of being guilty of tax evasion. 22. This Court further recorded as under: 81. However, in view of the material on record, we are constrained to observe that the possibility of the use of violence by respondent Nos.5 to 9 against petitioner Nos.2 to 4 and the other employees of petitioner No.1 cannot be entirely ruled out having regard to Ex.P.4, in particular. 82. In addition to the above, the summons Annexure P-6 issued under Sec.70 of the CGST Act, 2017 to the 2nd petitioner by 4th respondent is also worth mentioning. 83. It bears a date 12.12.2019 and asks the 2nd petitioner to appear before 4th respondent at 00:30 hrs on 12.12.2019. 84. This prima-facie indicates that it was issued after midnight on the intervening night of 11.12.2019 and 12.12.2019 asking the 2nd petitioner to appear at the ungodly hour of 00:30 hrs on that day. 85. What was so important to be recorded at such a time, which cannot wait till the morning of 12.12.2019, is not disclosed by the respondents. 86. We shall here refer to the plea in para 35 of the counter filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge were made to any human/person or property and no sentiments were hurt. 23. Ultimately and on due consideration this Court allowed W.P.No.28268 of 2019 vide the order dated 06.11.2020 by issuing the appropriate directions: (a) the respondents shall not use any acts of violence or torture against petitioner Nos.2 to 4 or their employees in furtherance of enquiry proceedings F.No.574 / CE / 198 / 2019 / INV initiated against the 1st petitioner; (b) the enquiry in the above proceedings against the 1st petitioner shall not be handled by the 5th respondent, and he shall not participate in such enquiry, and it shall be transferred to another official to be designated by the 2nd respondent; (c) any interrogation of petitioner Nos.2 to 4 or their employees shall be between 10:30 a.m. and 05:00 p.m. on week days in the visible range of an Advocate appointed by them, who shall not be in hearing range; (d) the petitioner Nos.2 to 4 alone can be summoned to New Delhi for the purpose of the above enquiry by the respondents on one occasion for two to three days, and rest of their interrogation and those of their employees shall be conducted at Hyderabad by the respondents; and (e) t ..... 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