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2021-TIOL-1907-HC-MUM-GST
Monopoly Innovations Pvt Ltd Vs UoI
GST - It was alleged that the petitioner had classified the chemical products under CTH 15162099 and tax liability discharged is @ 5%; however, on verification, it was noticed that the said chemical products are appropriately classifiable 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/- - Later, petitioner's bankers, HDFC Bank and ICICI Bank, were directed in exercise of powers u/s 83 of the Act, not to allow debit to be made from the accounts maintained with such banks or any other account operated by the petitioner without prior permission of the department - Commissioner has passed an order dated May 21, 2021 u/s 159(5) of the Rules, 2017 whereby the objection raised to the orders of provisional attachment has been overruled and the prayer for revoking the said orders rejected - Such order of May 21, 2021 has been challenged by the petitioner.
Held: Commissioner upon consideration of the opinion of the Institute of Chemical Technology, Mumbai rejected the same by observing that he did not "find the report to be proper" - The comments made for rejecting the report would tend to suggest that the Commissioner has good deal of knowledge in the subject of chemical science - It is beyond the competence of the Bench to say which of the two versions (that of the Institute and the Commissioner) is correct - At the same time, Bench is unaware of the educational qualifications of the Commissioner or his expertise in chemical science - In any event, how far the report of the Institute was worth consideration should have been examined by the Commissioner by obtaining a counter expert opinion and based thereon he could have proceeded to reject the Institute's report instead of discrediting the same - The observations made by the Commissioner are not structured on any referable scientific basis and, therefore, it is all the more necessary that the prayer of the petitioner for lifting of the orders of provisional attachment deserves de novo consideration - Counsel for Revenue 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 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 - Non-consideration of relevant materials and consideration of extraneous matters together with non-access of the part affected to materials relied on in reaching conclusions, if substantiated, would provide sufficient ground for judicial review - Impugned order dated May 21, 2021 stands set aside - The Commissioner is directed to de novo consider the objection of the petitioner dated May 7 & 17, 2021 in accordance with law - In the event, the Commissioner refuses to lift the orders of provisional attachment once again, appropriate reasons shall be assigned - Petition stands allowed to the extent as aforesaid: High Court [para 20, 22, 24, 25, 26]
- Matter remanded: BOMBAY HIGH COURT
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