TaxTMI 
TaxTMI 
2021 (2) TMI 768
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....er section 83 of the Finance Act, 1994 ("the Finance Act" for short), read with section 14 of the Central Excise Act, 1944 ("the Central Excise Act" for short) read with section 174 of the Central Goods and Services Tax Act, 2017 ("the CGST Act" for short) to tender oral evidence and further summons dated 15.04.2019, 31.10.2019, 04.08.2020 and 12.10.2020 under section 83 of the Finance Act read with section 14 of the Central Excise Act read with section 174 of the CGST Act to tender oral / documentary evidence in respect of evasion of goods and services tax (GST). 3. Before we advert to the submissions made on behalf of the respective parties, it will be apposite to briefly refer to the relevant facts :- 3.1. Petitioner No.1 is a company registered under the Companies Act, 1956 and is engaged in the business of trading in consumer goods, FMCG products, cameras, batteries etc. since the last 34 years. Petitioner No.2 is the Managing Director of petitioner No.1. 3.2. On 03.04.2019 Directorate General of GST Intelligence, Mumbai conducted a raid on the premises of petitioner No.1 and respondent Nos.6 and 7 and seized several documents, books of accounts, hard disks etc. for the pur....
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....t No.2 issued a fifth summons to petitioner No.2 under section 70 of the Central Goods and Services Tax Act, 2017 seeking his attendance for giving evidence and/or producing documents or things from his possession and under his control in respect of the following descriptions: i. Transport documents from 2017-18 & 2018-19; ii. Payment particulars to the Transporters for the above period; iii. Samples of sale/purchase invoices for all suppliers and customers; 3.10. Being aggrieved petitioners filed the present writ petition on 16.10.2020 to challenge the issuance of summons and seeking stay of proceedings / inquiry. On 16.12.2020 petitioners filed Interim Application (L) No.9100 of 2020 to seek injunction and to bring on record summons dated 13.11.2020 issued by the office of respondent No.2 under Section 70 of the CGST Act to petitioner No.2 seeking his attendance to give evidence and/or produce documents or things from his possession and/or under his control in respect of the following descriptions: i. Tender Evidence; ii. Documents as per summons dated 12.10.2020. 3.11. On 01.12.2020 Advocate for the petitioners addressed a letter to respondent Nos.1 and 2 in reply ....
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....vestigation and inquiry under the relevant statues. 5. PER CONTRA Mr. Pradeep Jetly, learned senior counsel appearing for respondent Nos.1 and 2 has drawn our attention to the affidavit-in-reply dated 06.01.2021 filed by the Deputy Director, Directorate of GST Intelligence, Mumbai Unit and submitted that the summons were issued on the basis of intelligence developed by the officers of respondent No.2 that petitioner No.1 and its associates namely; (a) M/s KBS Industries Private Limited; (b) M/s RAL Consumer Products Limited; (c) M/s Zercon Electricals and Appliances Private Limited; (d) M/s Aastik Trading Private Limited; (e) M/s Harshika Trading Private Limited; (f) M/s Artheon Electronics Private Limited; and (g) M/s Servicare Labs Private Limited have indulged in circular trading activity by raising invoices without supply / movement of goods amongst themselves. He submitted that during the course of investigation carried out by the office of respondent No.2 statement of various persons were recorded in which they admitted that purchase and sale invoices of petitioner No.1 company were issued without physical inspection, receiving and dispatch of the subjects....
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.... the petition is not maintainable on behalf of petitioner No.1 company since the authorized representative of petitioner No.1 did not have the requisite authority to institute the petition; the act of petitioner No.2 verifying the petition is an act willful misrepresentation; that the management of petitioner No.1 company vests with the resolution professional as the powers of the Board of Directors of petitioner No.1 stand suspended and are to be exercised by the Resolution Professional. 7. Submissions made by learned counsel for the parties have received the due consideration of the Court. Also examined the materials on record. 8. Before we advert to the submissions made on behalf of the parties, it will be apposite to briefly refer to the relevant statutory provisions. 8.1. Section 14 of the Central Excise Act, 1944 pertains to power to summon persons to give evidence and produce documents in inquiry under the said Act. Section 14 is extracted as under :- "14. Power to summon persons to give evidence and produce documents in inquiries under this Act.- (1) Any Central Excise Officer duly empowered by the Central Government in this behalf shall have power to summon any pers....
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....also relevant is extracted as under :- "174. Repeal and saving.- (1) Save as otherwise provided in this Act, on and from the date of commencement of this Act, the Central Excise Act, 1944 (except as respects goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution), the Medicinal and Toilet Preparations (Excise Duties) Act, 1955, the Additional Duties of Excise (Goods of Special Importance) Act, 1957, the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978, and the Central Excise Tariff Act, 1985 (hereafter referred to as the repealed Acts) are hereby repealed. (2) The repeal of the said Acts and the amendment of the Finance Act, 1994 (hereafter referred to as "such amendment" or "amended Act", as the case may be) to the extent mentioned in the sub-section (1) or section 173 shall not- (a) revive anything not in force or existing at the time of such amendment or repeal; or (b) affect the previous operation of the amended Act or repealed Acts and orders or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under the amended Act or repealed ....
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....ted, continued or enforced and any such tax may be levied or imposed as if the aforesaid acts had not been so amended or repealed. Thus it is evident that respondent No.2 has power and authority to issue summons to the petitioners and more specifically petitioner No.2 under the provisions of the aforementioned statutes to give evidence and produce the relevant documents in inquiry. 10. Having noticed the above, we may state that the power to summon persons to give evidence and produce documents in inquiry is a statutory function regulated by the aforementioned provisions of the statutes. Sub-sections (1) and (2) of Section 14 of the Central Excise Act state that summons to produce documents or other things in the possession of or under the control of the person summoned can be issued by an officer duly empowered by the Central Government and all persons so summoned shall be bound to attend and state the truth upon any subject respecting which they are examined or make statements or to produce such documents and other things as may be called upon. Sub-section (3) of section 14 states that every such inquiry as aforesaid shall be deemed to be a judicial proceedings within the meanin....
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.... hereby summon you to appear before me in person on 20/10/2020 at 2:30 PM at the office of 1st floor, NTC House, Mumbai - 400001 Inquiry as aforesaid is deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, 1860 (45 of 1860) and non-compliance of this summon is an offence punishable under Section 174 & 175 of the Indian Penal Code, 1860. Given under my hand and seal of office to-day the 12 day of October, 2020 at Mumbai. Name : S.K. SINGH Signature : SD/- Designation Superintendent / Appraiser / Senior Intelligence Officer Seal of Office. (ii) Summons dated 13.11.2020 is produced at Exhibit 'B' to the Interim Application and reads thus :- "CBIC-DIN-202011DWW0000000CA1B SUMMONS [under Section 70 of the Central Goods and Services Act, 2017] To, Shri Kunal Jiwarajka, Ex. Director of M/s JSK Marketing Limited 403-405, Sumer Kendra, Behind Mahindra Tower, Worli, Mumbai - 400018. WHEREAS, I S.K. Singh am making inquiry in connection with GST inquiry under the Central Goods and Services Tax Act, 2017. AND WHEREAS, I consider your attendance necessary to (a) give evidence and / or (b) produce documents ....
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....ct by the investigating officer. The summons do not state that the petitioner No.2 shall be liable for arrest or will be arrested as the statutory provisions under which the summons have been issued pertain to investigation undertaken by the statutory officer. Hence there is no reason for the petitioners to assume that the petitioner No.2 on presenting himself before the investigating officer will be arrested or apprehended. The inquiry which is undertaken by respondent No.2 is a statutory inquiry pertaining to evasion of GST under the CGST Act wherein the petitioner No.2 has been called upon to tender his oral evidence as also to produce the documents that may be required for the purpose of completing the inquiry by the investigating officer. Petitioners' apprehension that petitioner No.2 will be apprehended / arrested / incriminated since the inquiry pertains to evasion of service tax / GST is not well founded. The summons dated 12.10.2020 makes it succinctly clear that the petitioners are required to tender oral evidence and produce certain documents. Investigation is under way pursuant to the raid which was carried out at the premises of the petitioners on 03.04.2019 and seizur....