Calcutta High Court (Appellete Side)
M/S. Global Seamless Tubes & Pipes ... vs Assistant Commissioner Of Cgst & ... on 29 November, 2022
Form No. J(2).
Item No.5
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
HEARD ON: 29.11.2022
DELIVERED ON: 29.11.2022
CORAM:
THE HON'BLE MR. JUSTICE T.S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
M.A.T. 1334 of 2022
With
I.A. No. CAN 1 of 2022
M/s. Global Seamless Tubes & Pipes Private Limited
VERSUS
Assistant Commissioner of CGST & CX,
Shyambazar Division, Kolkata North Commissionerate & Ors.
Appearance:-
Mr. Anil Duggar
Mr. Sandip Choraria ........for the appellant
Mr. Bhaskar Prosad Banerjee
Mr. Abhradip Maity .....for the respondents
JUDGMENT
(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)
1. This intra-Court appeal by the writ petitioner is
directed against the order dated 29th June, 2022 passed in WPA
8746 of 2022.The said writ petition was filed by the appellant
praying for a direction upon the respondents to complete the
investigation, which has been caused against the appellant.
The appellant is primarily aggrieved by terming the appellant
as a risky exporter and a tag being fixed and accordingly,
thereby export consignments of the appellant are either not
being allowed to be exported or there is inordinate delay on
the alleged ground of verification.
2. The learned writ Court had directed the investigation to
be completed and appropriate orders to be passed pursuant to
such investigation. Aggrieved by such direction, the writ
petitioner is on appeal before us.
3. We have heard Mr. Duggar, learned advocate for the
appellant/petitioner. The prayer sought for in the writ
petition is for a direction upon the respondents to complete
the investigation. In terms of the oral instruction received
by Mr. Bhaskar Prosad Banerjee, learned senior standing
counsel for the revenue, the investigation appears to have
been complete and it is in the final stage and the show-cause
notice is to be issued shortly.
4. Mr. Duggar, on the other hand would submit that already
four notices have been issued calling upon the appellant to
produce the documents, which the appellant had complied with.
Further, it is the submission of the learned advocate for the
appellant that the alleged amount of illegal availment of ITC
has been paid by the appellant without prejudice to its rights
and nothing remains further for the department to brand the
appellant as a risky exporter.
5. What is to be borne in mind is that terming the appellant
as a risky exporter and issuing a show-cause notice by the
adjudicating authority are two different matters. Pending
investigation, the department exercised its powers in terms of
the various circulars and directions issued by the Central
Board to affix the tag on the exporter as a risky exporter to
enable the department to verify the export consignments etc.
Therefore, the risky exporter tag cannot be indefinitely put
on valid and precisely for this reason, the Central Board has
issued Circular No. 131/1/2020-GST dated 23rd January, 2020 by
which strict timelines have been fixed for the authorities to
take action. The circular affords an opportunity to such a
risky exporter to escalate the matter. If the concerned
officer does not take a decision within 14 days, a petition
before the Principal Chief Commissioner or Chief Commissioner
of Central Tax shall be filed and if such petition is filed, a
decision should be taken within 7 working days.
6. All these timelines have been totally ignored and are not
being adhered to by the department. The representation given
by the appellant to the sixth respondent is dated 10 th March,
2022 and going by the timelines prescribed in the circular, a
decision ought to have been taken within 7 days. This has not
been adhered to by the department.
7. As pointed out earlier, the process of adjudication is
quite distinct and different from terming a person a risky
exporter, which tag cannot be perpetually affixed to an
exporter as it would tantamount to interfering with his right
to carry on exports based on suspicion. Therefore, we are of
the view that the representation dated 10th March, 2022 should
be considered by the sixth respondent within the timeline
stipulated by this Court.
8. In the result, the appeal stands disposed of with a
direction to the sixth respondent to consider the
representation dated 10th March, 2022 after giving an
opportunity of personal hearing to the authorised
representative of the appellant and an order be passed on
merits and in accordance with law and communicate the same to
the appellant within 15 days from the date of receipt of a
copy of this judgment and order. Connected application (I.A.
No. CAN 1 of 2022) also stands disposed of.
9. So far as the adjudication proceedings are concerned, it
would be well open for the first and second respondent to
proceed to issue show-cause notice and proceed in accordance
with law.
10. There shall be no order as to costs.
11. Urgent photostat certified copy of this order, if applied
for, be furnished to the parties expeditiously upon compliance
of all legal formalities.
(T.S. SIVAGNANAM, J.)
I agree, (HIRANMAY BHATTACHARYYA, J.)
RAJA/Pallab, AR(Ct.)
