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Gujarat HC: “The proceedings of issuing summons under Section 70 of the CGST Act are the proceedings of judicial nature.”
The petitioner, Yasho Industries Ltd. being a public Ltd. engaged within the business of producing and exporting specialized chemicals having its factory found out. The petitioner Company is that the holder of Advance Authorization Licences granted in terms of the Scheme began in Chapter-IV (AA Scheme) of Foreign trade policy 2015-2020.
The petitioner challenged the Summons issued under Section 70 of the Central Goods and Services Tax Act, 2007, calling upon the petitioners to offer evidence and produce the documents as mentioned therein about the inquiry initiated against the petitioners. The petitioners even have sought directions against the respondent to issue refund/allow recredit of INR 3 Crore paid by the petitioners vide Form No. GST DCR-03. The petitioners have also sought direction to quash and put aside the impugned Circular, about the assignment of functions to the officers because the ‘proper officers’ about the varied functions of the CGST Act and therefore the Rules made thereunder.
Advocate appearing for the petitioners challenged the jurisdiction of the respondent in issuing the summons, submitted that the facility to issue summons in terms of Section 70 of the CGST Act vests solely with the ‘Proper Officer’ as per Section 2(91) of the Act. Persistent to service Section 167 of the CGST Act.
The learned Advocate Mr. Rastogi submitted that the delegation of powers by the Commissioner has got to be specified by way of the Notification as contemplated within the said section. consistent with him, the respondent is an officer of Directorate General of products and Services Tax Intelligence (DGGI) and holds the designation of a senior intelligence officer, and his appointment under the CGST Act might be traced to the Notification dated 1.7.2017 and thus, the respondent is appointed as a Central Tax Officer and is within the rank of Superintendent under CGST Act.
Assailing the impugned Circular dated 5.7.2017, Mr.Rastogi submitted that Section 2(91) is simply a definition clause, which doesn't confer any powers to assign the functions. The said Circular also makes regard to Section 20 of the IGST, which merely incorporates by reference, certain provisions of the CGST Act and makes them applicable to the IGST Act. Since the delegation of powers by the Commissioner under Section 167 of the CGST Act has got to be effectuated through a Notification, such power can't be exercised in any manner, except within the manner prescribed in Section 167.
The division bench of Justice Bela M. Trivedi and Justice A.C.Joshi the petitioners having made payment under Section 74(5), they seem to possess informed the right Officer of such payment within the Form GST DRC-03 as considered in Rule 142(2) of the said Rules. it's needless to mention that the said payment shall be addressed or adjusted by the concerned respondent per law more particularly as per the provisions contained in Section 74 of the CGST Act.
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