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TMI Blog2021 (2) TMI 1324X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant has a fear in his mind that if he would appear before the DGGSTI he may be arrested, and that is the reason why he has come before this Court with the present writ-application. 3. By this writ-application under Article 226 of the Constitution of India, the writ-applicant has prayed for the following reliefs : "(A) To issue a writ of certiorari or any other writ, order or direction, quashing and setting aside the investigation bearing F.No.DGGI/AZU/Gr.A/12(4)/118/2019-20 issued by Directorate General of Goods and Service Tax Intelligence, Zonal Unit, Ahmedabad; and/or (B) To issue a writ of certiorari or any other writ, order or direction, quashing and setting aside the summons dated 21.10.2019, 27.11.2019 and 23.11.2020 issued by Directorate General of Goods and Service Tax Intelligence, Zonal Unit, Ahmedabad; and/or (C) To grant an ex-parte, ad-interim order in favour of the petitioner, staying the proceedings of the impugned investigation bearing F.No.DGGI/AZU/Gr.A/12(4)/118/ 2019-20 and stay of any coercive action, during the pendency of the matter; (D) To pass any other and further orders as may be deemed fit and proper; and (E) To provide for the costs o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of the Bombay High Court in the case of Safi Khan Khokhar vs. State of Maharashtra reported in 2019 (20) GSTL 513 (Bom) and also on a decision of the Supreme Court in the case of Commissioner of Customs vs. Sayed Ali reported in (2011) 3 SCC 537. Thus, the principal argument canvassed by the learned counsel appearing for the writ applicant is with regard to the jurisdiction of the Directorate General of Goods and Services Tax Intelligence, Zonal Unit, Ahmedabad. 5. Let Notice be issued to the respondents, returnable on 11th January 2021. Till the next date of hearing, the respondents Nos.2 and 6 respectively shall not take any coercive action against the writ applicant. The respondents shall be served directly through Email. In the meantime, Mr. Chetan Pandya, the learned counsel on record appearing for the writ applicant shall serve one copy of the entire paper book to Mr. Devang Vyas, the learned Additional Solicitor General of India so that appropriate instructions can be obtained and the Court can proceed with the hearing of the matter on the next date i.e. 11th January 2021. The Court intends to hear this matter finally as a neat question of law has been raised. On t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode. As a consequence, a person who is summoned under Section 70(1) of the CGST Act, 2017, to give evidence or to produce document, becomes liable for punishment if he intentionally gives false evidence or fabricates false evidence or intentionally offers any insult or causes any interruption to any public servant. 11. Therefore, even if the enquiry before the "proper officer" under the CGST Act, 2017, is not by its nature, a criminal proceeding, it is nevertheless a judicial proceeding and hence, the person summoned is obliged not to give false evidence nor to fabricate evidence. He is also obliged not to insult and not to cause any interruption to the "proper officer" in the course of such proceedings. 12. The principal argument of the learned counsel appearing for the writ-applicant is that the power to summon any person under Section 70 of the CGST Act lies with a "proper officer". If a "proper officer" considers any person necessary either to give evidence or produce a document or any other thing in any inquiry, then the summons can be issued by the "proper officer" of that case and he would be empowered to record the statement of such person. 13. Our attention was drawn to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le. 6.5.2 With reference to the contention raised by the petitioner, as summarised in sub-paragraph 6.5 (iii) above, it is most respectfully submitted before this Hon'ble Court that: The investigation into the affairs of the petitioner were initiated by the DGGSTI October 2019 and meanwhile the investigations into the affairs of M/s SSM Exports, the sole supplier of the petitioner, were also initiated. Summons were being issued to the petitioner till 09.12.2019 however, no one appeared in person for one reason or other. Meanwhile, the investigation was being conducted into the affairs of the sole supplier of the petitioner and searches were conducted at various premises located in Delhi NCR. So merely if summons were not issued does not mean that there was no investigation being carried out by DGGSTI. Moresoever, due to COVID pandemic no summons were issue to the petitioner till November 2020. The summons issued by DGGSTI has no relevance with the petition filed by the petitioner before the Hon'ble High Court of Delhi. Now since it is clear that only one agency, i.e. DGGSTI is investigating the petitioner's case, the petitioner should not have any further grievances in this r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner appears to be fraudulent as the goods appear to have not been received by the supplier. So, the petitioner is ineligible to avail the ITC on the strength of such invoices. Accordingly, the refund of such accumulated ITC is also appears to be recoverable. Thus the contention of the petitioner that the present case is about refund of accumulated ITC only is also incorrect in as much as this present investigation is primarily into the vitiated ITC passed on by the sole supplier of the petitioner, the availment of such ITC by the petitioner and resultant filing of refund of such accumulated ITC. 7. The petitioner has so far not appeared before DGGSTI for on reason or other. It is pertinent to mention that the Hon'ble High Court of Gujarat in case of Vimal Yashwantgiri Goswami vs. State of Gujarat has held the arrest of accused proper in GST cases. Accordingly, it is humbly submitted that the petitioner may be directed to join the investigation and the interim relief granted to the petitioner may pleased be withdrawn." 16. Thus, the stance of the respondents is that the impugned summons issued by the DGGSTI has no relevance or any bearing with the writ-application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation period specified for issue of show cause notice under Section 73(1) of the Fin Act." 18. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is, whether we should interfere at the stage of issue of summons under Section 70 of the CGST Act, 2017. 19. The judgment of the Supreme Court in the case of Commissionerate of Customs, Calcutta vs. M.M.Exports, 2007 (212) ELT 165 (SC), takes the view that the High Courts should not interfere at the summons stage except in exceptional cases, the reason being that the department has not decided and taken a firm opinion whether or not to issue a show-cause notice. 20. One more decision of the Supreme Court is in the case of Union of India vs. Rajnish Kumar, Tuli, in the Special Leave Criminal Appeal No.30 of 2010. In the said case, the appeal arose out of the order passed by the Punjab and Haryana High Court, directing the concerned officers of the Directorate of Revenue Intelligence to examine and record the evidence of the respondent therein at their office at Ludhiana. A case was registered by the Ahmedabad Zonal Unit, DR ..... X X X X Extracts X X X X X X X X Extracts X X X X
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