TaxTMI 
TaxTMI 
2024 (6) TMI 81
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....vocate appearing for respondent Nos. 3, 4 and 5 and Mr. D.N. Gogoi learned counsel for respondent No. 6. 2. These writ petitions are filed challenging the legality and validity of the seizure dated 27.07.2017 whereby the goods of the petitioners were seized by the seizing authority even after being duly accounted for, though the petitioners are registered under the goods and services Tax Act, 2017. 3. The interests of the petitioners in all 3 cases are common and similar arguments are advanced by the learned counsel Ms. N Hawelia. The petitioners are registered under the Central Goods and Service Tax Act, 2017 (hereinafter referred to as the CGST Act) and earlier they were registered under the Assam Value Added Tax Act, 2003. The authorit....
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....evance for the business under the GST regime. 7. The petitioners contend that this is an unnecessary intervention by an incompetent authority. In fact, the bona fide of the seizure is also questioned on account of the threat meted out to the petitioners, for their inadequate donation to certain organizations in Assam. 8. The learned counsel Ms. N Hawelia for the petitioners submits that when the GST regime is at a nascent stage and requisite infrastructure is not yet ready for e-way bill system, the harassment of the bonafide business group is totally unwarranted. The counsel refers to the press note of the Union Finance Minister to project that such harassment cannot be resorted to by visiting the business premises of the dealers, even b....
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....n that the petitioners are storing "stolen/smuggled areca nuts". 12. The respondent BI (EO) is relying on a notification issued in the name of Governor of Assam dated 11.09.2003, according to which the BIEO is empowered to make such a search and seizure. As the said notification dated 11.09.2003 is stated to be the source of power of the BI (EO)to conduct the aforesaid search and seizure. Such notification is quoted herein below: No. HMA.400/2003/12 Dated Dispur, the 11th September, 2003 "In exercise of the powers conferred by clause (s) of the Section 2 of the Code of Criminal Procedure 1973 (Act 2 of 1974), the State Government do hereby declare that the office as specified in column No.(1) of the Schedule No.I below shall be police....
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....conomic) Offence, Assam, Guwahati shall be a police station and it shall include within its limit the whole of Assam for the purpose of investigation so far relating to the offences enumerated in the Schedule II of the notification. 14. It is seen from the Schedule II of the notification that the said police station is not empowered to investigate any offence under section 379 IPC inasmuch offences enumerated under the Schedule- II basically relates to Economic offences, such as forgery in connection with evasion of taxes, offences under the Essential Commodities Act, Offences under the Forest and WLP Act and offences under the Excise Act etc. 15. Both these schedule I and Schedule II reflect that the object of issuance of such a notifica....
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....merated in the Schedule-II of the Notification. If the jurisdictional fact does not exist, the BIEO authority cannot act. If an authority wrongly assumes the existence of such a fact and acts, such action can be questioned by a writ of certiorari. The underlying principle is that by erroneously assuming existence of such jurisdictional fact, no authority can confer upon itself jurisdiction which it otherwise does not possess. 19. Such jurisdictional facts are absent in the admitted background and pleading by the respondent that the seizure was carried out suspected to be stolen/smuggled goods. Therefore, this court is of the unhesitant view that the BI (EO) is not empowered to carry on the search and seizure and it wrongly assumed the exis....