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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 ..... y 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, DRI, on the allegation of misuse of the advance licence scheme and summons were issued under Section 108 of the Customs Act, 1962. The Supreme Court took note of the decision in the case of Dukhishiyam Benupani, Asstt. Director, Enforcement Directorate (FERA) vs. Arun Kumar Bajoria, [ 1997 (11) TMI 428 - SUPREME COURT ], and held that the learned Single Judge of the Punjab and Haryana High Court could be said to have passed the order without properly appreciating the decision of the Supreme Court in the case of Arun Kumar Bajoria. This writ-application need not be entertained - application dismissed. - R/SPECIAL CIVIL APPLICATION NO. 16271 of 2020 - - - Dated:- 1-2-2021 - HONOURABLE MR. JUSTICE J.B.PARDIWALA and HONOURABLE MR. JUSTICE ILESH J. VORA For the Petitioners : MR CHETAN K PANDYA For the Respondent : MR DEVANG VYAS ,NOTICE SERVED(4) ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE ILESH J. VORA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d out that the proprietary firm has been registered under the provisions of the Central Goods and Services Tax Act, 2017 (for short, the CGST Act, 2017 ) at Delhi and is under the jurisdictional control of the Central Excise and Service Tax, Central Tax Delhi South. It appears from the materials on record that the office of the Delhi South Commissionerate has initiated some investigation against the writ applicant. Summons in the past were issued to the writ applicant under Section 70 of the CGST Act, 2017 by the office of the Delhi South Commissionerate. The learned counsel would submit that her client has abided by the summons issued in the past by the Delhi South Commissionerate and various documents have been taken in custody by the office of the Delhi South Commissionerate. 3. The cause of action in filing this writ application is the summons received by the writ applicant from the Directorate General of Goods and Services Tax Intelligence, Zonal Unit, Ahmedabad under Section 70 of the CGST Act, 2017. The argument canvassed is that the proper officer under the provisions of the CGST Act, 2017 is the Joint Commissioner, Central GST, Delhi South Commissionerate, who not o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferent agencies, i.e. the Principal Commissioner of Central Excise and Service Tax, Central Tax, Delhi, and simultaneously, by the officers of the Directorate General of Goods and Service Tax Intelligence, Zonal Unit, Ahmedabad (Gujarat). To put it in other words, the grievance redressed is that with respect to one subject matter two authorities are conducting the inquiry. 7. Section 70 of the CGST Act, 2017, reads as under : Section 70 : Power to summon persons to give evidence and produce documents :- (1) The proper officer under this Act shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry in the same manner, as provided in the case of a civil court under the provisions of the Code of Civil Procedure, 1908. (2) Every such inquiry referred to in sub-section (1) shall be deemed to be a judicial proceedings within the meaning of Section 193 and Section 228 of the Indian Penal Code. 8. It must be pointed out that despite the fact that the enquiry by the officers of the GST Commissionerate is not a criminal proceeding, it is nevertheless a judicial proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n undertaken by the concerned jurisdictional commissionerate, i.e. the Commissionerate (South) at Delhi, there is no good and justifiable reason for the Directorate General of Goods and Service Tax Intelligence, Zonal Unit, Ahmedabad, to undertake a parallel inquiry with respect to the same subject matter and issue summons under Section 70 of the Act. 15. Mr.Devang Vyas, the learned Additional Solicitor General of India, has vehemently opposed this writ-application submitting that the same is not maintainable in law as all it seeks is to question the legality and validity of a summons issued under Section 70 of the Act. Mr.Vyas has tried to justify the issue of summons by the Directorate General of Goods and Service Tax Intelligence, Zonal Unit, Ahmedabad, by explaining the following in the affidavit-in-reply filed on behalf of the respondents nos.1, 2 and 6 respectively. We quote the relevant observations thus : The case against petitioner is intricately linked with the investigation being conducted by DGGSTI against M/s SSM Exports which is not under the jurisdiction of CGST, Delhi South Commissionerate as entire goods have been purchased by the petitioner from M/s SSM Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egistered person shall, subject to such conditions and restrictions as may be prescribed and in the manner specified in section 49, be entitled to take credit of input tax charged on any supply of goods or services or both to him which are used or intended to be used in the course or furtherance of his business and the said amount shall be credited to the electronic credit ledger of such person. (2) Notwithstanding anything contained in this section, no registered person shall be entitled to the credit of any input tax in respect of any supply of goods or services or both to him unless, (a) he is in possession of a tax invoice or debit note issued by a supplier registered under this Act, or such other tax paying documents as may be prescribed; (b) he has received the goods or services or both. Explanation.-For the purposes of this clause, it shall be deemed that the registered person has received the goods or, as the case may be, services (i) where the goods are delivered by the supplier to a recipient or any other person on the direction of such registered person, whether acting as an agent or otherwise, before or during movement of goods, either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particularly, the observations made in paragraphs-33 and 56 : 33. Exercise of discretionary power relating to procedure can be challenged on limited number of grounds, like patent and gross misuse, ex facie grave disproportionate hardship and inconvenience to the person when a more convenient and acceptable mode for compliance is available, or mala fides in exercise of power etc. Courts would, however, not interfere merely because the authority has exercised discretion that is not acceptable to the assessee. The choice whether or not to exercise power of special audit, summons etc. is for the respondents to decide and exercise, and not for the petitioner to direct. 56. In view of the aforesaid discussion, it is held as under: (i) Central Excise Officers of DGCEI have all India jurisdiction and can issue notices and enquire into the matters relating to service- tax against any assessee/ person even if the said person or assessee is registered with one or multiple Commissionerates. (ii) Notice under Section 14 of the CE Act i.e. Central Excise Act can be issued even if proceedings under Section 73 of the Fin Act i.e. Finance Act, 1994 are not pending. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 SCC 52, and held that the learned Single Judge of the Punjab and Haryana High Court could be said to have passed the order without properly appreciating the decision of the Supreme Court in the case of Arun Kumar Bajoria (supra). Ultimately, the appeal filed by the Union of India was allowed, leaving it open to the Directorate of Revenue Intelligence to issue appropriate summons to the respondent for his appearance at an appropriate place. By applying the law laid down in the aforementioned Supreme Court's decision, the only conclusion that can be arrived at by this Court is to held that a writ petition challenging a summon, is not maintainable. 21. In view of the aforesaid, we are not inclined to entertain this writ-application. However, before parting with this order, we may draw the attention of the respondents to the observations made by the Delhi High Court in the case of National Building Construction Company Limited (supra). We quote the observations made in paragraph-34 as under : 34. However, we have reservation on the language used in some of the notices/summons requiring presence of the Managing Director and senior officer of the petitioner with threats or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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