2022 (2) TMI 242 - HC - GST

Provisional Attachment Under GST Section 83 Must End When Final Assessment Order Is Issued

Fine Exime Private Limited Versus Union Of India & Ors.

HC ruled that provisional attachment under Section 83 of CGST Act must cease upon issuance of final assessment order. The court disposed of the writ ... Provisional attachment of goods - Section 83 of the Central Goods and Services Act, 2017 - assessment Order passed by the learned Additional Commissioner pursuant to the said Show Cause Notice - HELD THAT:- The Hon’ble Supreme Court in the case of M/S RADHA KRISHAN INDUSTRIES VERSUS STATE OF HIMACHAL PRADESH & ORS. [2021 (4) TMI 837 - SUPREME COURT] has held that, once the final Order of assessment is passed, provisional attachment must cease to subsist. This Court after adverting the said Judgment of the Hon’ble Supreme Court in the case of Radha Krishan Industries has held that, once assessment Order is passed, no proceedings of nature referred to in Sub-Section 1 of Section 83 can continue. The principles laid down by the Hon’ble Supreme Court in the case of Radha Krishan Industries applied to the facts of this case. Similar is the view taken by this Court in the case of FINE EXIME PRIVATE LIMITED VERSUS UNION OF INDIA, THE PRINCIPAL COMMISSIONER, CENTRAL TAX AND CX, MUMBAI EAST., THE COMMISSIONER OF CGST & CENTRAL EXCISE (APPEALS II) MUMBAI [2021 (8) TMI 519 - BOMBAY HIGH COURT] - thus, once assessment Order is passed pursuant to the said Show Cause Notice, the Order of provisional attachment cease to exist and comes to an end. It is accordingly declared that the said provisional attachment ceases to exist and come to an end. Petition disposed off. Issues:1. Compliance of the Order dated 17th November 20212. Effect of the Order passed by the Additional Commissioner on the Show Cause Notice3. Validity of provisional attachment Order dated 21st September 20214. Relief sought by the Petitioner regarding provisional attachment5. Dispute over the reliefs sought by the Petitioner6. Pending Show Cause Notice and direction to decide it7. Acknowledgment of the Order of adjudication passed against the Petitioner8. Entitlement of the Petitioner to seek consequential reliefs9. Ceasing of provisional attachment upon passing of final assessment Order10. Application of principles laid down by the Supreme Court and the High Court11. Disposal of the Writ Petition and direction to inform the bank about lifting the attachmentAnalysis:1. The matter was brought before the High Court for compliance with the Order dated 17th November 2021, directing the Additional Commissioner to decide the Show Cause Notice in accordance with the law and granting an opportunity of hearing to the Petitioner. The Court did not dispose of the Writ Petition by this Order and directed the parties to complete their pleadings.2. The Petitioner expressed grievance against the Order passed by the Additional Commissioner on the Show Cause Notice dated 21st January 2022, indicating intention to file appropriate proceedings. The Petitioner argued that the provisional attachment Order dated 21st September 2021 should automatically cease to have effect upon the passing of the Order by the Authority.3. The Petitioner contended that based on previous judgments, including one delivered on 10th August 2021, the provisional attachment should end once the final assessment Order is passed. The Respondent's Senior Counsel argued that the reliefs sought by the Petitioner regarding the provisional attachment were not included in the original Petition.4. The Court observed that the Petition challenged the Orders of provisional attachment issued under Section 83 of the CGST Act. It was noted that the Show Cause Notice against the Petitioner was pending, and the Additional Commissioner was directed to decide it in accordance with the law.5. Considering the assessment Order passed by the Additional Commissioner, the Court held that the Petitioner was entitled to seek consequential reliefs as the provisional attachment should cease to exist upon the final assessment Order being issued.6. Relying on the principles laid down by the Supreme Court and previous High Court judgments, the Court declared that once the assessment Order is passed, the provisional attachment must cease to exist. Accordingly, the Court disposed of the Writ Petition with no costs, directing the Respondents to inform the concerned bank about lifting the provisional attachment within 48 hours.7. The judgment emphasized the importance of adhering to legal procedures and principles established by higher courts, ensuring that the rights of the parties involved are protected and that justice is served in accordance with the law.