AI Drafter 
TaxTMI 
TaxTMI 
2021 (9) TMI 1111
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....r "the CGST Act", for short). 3. The writ petition, in its original form, laid a challenge to letters dated February 10, 2021 and March 15, 2021, both issued by the Deputy Commissioner (Anti Evasion) CGST, St & CEx, Raigad Commissionerate. 4. By the letter dated February 10, 2021, it was alleged that the petitioner had classified the chemical products referred to therein under CTH 15162099 and tax liability discharged is @ 5%; however, on verification, it was noticed that the said chemical products are no longer to be classified under Chapter 15162099 and should have been classified under CTH 2916, attracting GST @ 18%. On the ground that there has been misclassification of the goods, the petitioner was conveyed of its liability to pay differential duty estimated at Rs. 18,30,87,423/-. Direction followed for payment of the differential duty at the earliest. 5. The subsequent letter dated March 15, 2021 is in the nature of a reminder calling upon the petitioner to pay the differential duty of Rs. 18,30,87,423/- immediately. 6. Upon hearing the writ petition at the admission stage, a coordinate Bench of this Court by its order dated March 30, 2021 issued notice to the res....
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....er why we perceive the order to suffer from such infirmity. 11. Paragraph 3 of the order records that the petitioner's authorized representative, in course of a meeting with the Commissioner, had promised to pay the differential duty but on the contrary, without effecting payment, opted to approach this Court by instituting this writ petition only with the intention of delaying the deposit. This assertion has been categorically denied by Mr. Raichandani. In the absence of any evidence of what transpired in the meeting, we do not consider reference to the fact of the petitioner agreeing to deposit the differential duty to be of any relevance for the purpose of considering the prayer for lifting of the orders of provisional attachment. 12. The discussion and findings start from paragraph 7 onwards of the impugned order. 13. The case of the respondents essentially is that the petitioner has made a misclassification of the chemical products referred to therein, viz. i). Methyl Palmitate; ii). Methyl Ester of Soya Oil; and iii). Methyl Lenolanate (hereafter "the said chemical products", for short) by not classifying the same under Chapter 2915/2916 attracting GST @ 18%. A....
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....ave been undertaken. That apart, the Commissioner ought also to have dealt with the contention of the petitioner that the petitioner's factory premises were found to be functional on January 23, 2021. 15. At paragraph 7(iii), the Commissioner referred to noncooperation on the part of the petitioner to take the investigation to a logical conclusion. Taking serious exception to such allegation, Mr. Raichandani has submitted that the investigation was initiated on January 23, 2021 and it is incomprehensible as to why, despite recording of statements on January 25 & 28 and February 12, 2021, the investigation has not been concluded. It is further contended by him that as per request of the relevant department, samples of all the products were submitted together with relevant documents for the disputed period which would amply demonstrate complete cooperation on the part of the petitioner. The impugned order dated May 21, 2021 concluding that the petitioner has not cooperated with the department has been criticized as totally incorrect. Insofar as the statement in the said paragraph that the petitioner was shown several evidences such as confirmation of product description by the lab....
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....e of hearing, we had made it sufficiently clear to Mr. Mishra that in certain portions of the impugned order, the Commissioner had recorded conclusions without supporting reasons. Attachment of a property being in the nature of exercise of a drastic power, the Commissioner was required to be more circumspect in recording his conclusions by reference to the applicable law rather than recording his ipse dixit. To support the impugned order, Mr. Mishra sought to draw our attention to the affidavit-in-reply. According to him, sufficient reasons have been assigned in such affidavit which the Court ought to consider. We are afraid, the attempt of the respondents to introduce fresh reasons in their affidavit-inreply is not a permissible course of action to test the validity of the impugned order, having regard to the law laid down by the Supreme Court in its decisions reported in AIR 1952 SC 16 [Commissioner of Police, Bombay vs. Gordhandas Bhanji] and AIR 1978 SC 851 [Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner, New Delhi & Ors.]. Law has been laid down therein with sufficient clarity that the validity of an order passed by an authority has to be judged on the basis of....
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....ously indicate that these goods namely ............appears to be classifiable under chapter sub-heading 29161590 attracting GST @ 18% and the differential GST liability for the period July 2017 to March 2021 is Rs. 18.32 Crores". 22. We may, at this stage, record the contradictory stand taken by Mr. Mishra. While defending the action of the Commissioner in not assigning reasons for the finding arrived at by him that there has been misclassification, Mr. Mishra was heard to submit that at the stage of disposing of an objection under Rule 159(5) of the CGST Rules, it is not open for the Commissioner to express any conclusive opinion. However, such a stand taken by Mr. Mishra stands completely demolished in view of the Commissioner's own unambiguous conclusion on the basis of investigations conducted that the petitioner is liable to bear the differential duty of Rs. 18.32 Cr., at this stage, when investigations are still to be concluded. Obviously, the respondents have been blowing hot and cold at the same time, which is not permissible. 23. Be that as it may, based on the aforesaid findings as in paragraphs 7 and 8 of his order, the Commissioner in paragraph 9 recorded a satisf....