Case Law Details
Md. Tajal Hussain Vs State of Assam (Guwahati High Court)
The appellant took the stand that under Section 67 of the Assam Goods and Services Tax Act, 2017 (for short, AGST Act 2017), the search and seizure can be made only upon the proper officer, being not below the rank of Joint Commissioner, having reason to believe that tax input credit has been claimed in excess of the entitlement under the Act or there has been an evasion of tax payable under the Act. Accordingly, it was the contention that the search and seizure made by the police officials of the Jalukbari Police Station and then go ahead with the investigation and thereafter lodge an ejahar alleging evasion of GST dues, would be an aberration of the established procedure of law.
The learned Single Judge in the judgment dated 25.10.2019 arrived at its conclusion that the police authorities of Assam would have the jurisdiction to investigate certain offences under the Indian Penal Code, if made out, even though such offences may also be offences under the GST Acts or the Customs Act subject to the provisions of Section 26 of the General Clauses Act that no one will be liable to be punished twice for the same offence. The learned Single Judge was also of the view that although the trucks containing the areca nuts were seized essentially for fraud and forgery, their investigative role would primarily be confined to forgery of documents and cannot investigate whether there was any violation of the Customs Act. Accordingly, it was held that as regards the violation of the Customs Act, it would be appropriate for the police to hand over the investigation to the Customs authority so far as it relates to the allegations of smuggling. Similarly for the violation of the taxation laws under the AGST Act, it was held that the police authorities would have no jurisdiction and power to investigate such violation and the same would be governed by the provisions of the GST Acts under which a separate procedure for investigation is provided for. However in paragraph-53 of the judgment it was also provided that even if the statutes permit independent and separate investigation, but if such investigations involved coercive actions, similar to as contemplated under the CrPC, the investigations ought to be undertaken simultaneously, or else there would be a distinct possibility of infraction of the fundamental rights under Articles 14, 21 and 22. Further, as the documents produced revealed the commission of the principal offence under the Customs Act, it would be appropriate to hand over the investigation to the authorities under the customs department for further investigation under the Customs Act along with the seized goods and trucks. It was held that the initial seizure of the areca nuts and the trucks by the police authorities of Assam cannot be said to be without authority. Accordingly, it was concluded that no case for interference was made out for acceding to the prayer in the writ petitions for a declaration that the detention of the trucks containing the areca nuts was illegal and unsustainable.
Being aggrieved, the intra-court appeals have been preferred.
The core contention of Dr. Ashok Saraf, learned senior counsel for the appellants is that Section 67 of the GST Acts provides for the power of inspection, search and seizure for any claim for input tax credit in excess of the entitlements under the Act or for any contravention of the provisions of the Act or the Rules made thereunder to evade tax. In view of such specific provision for inspection, search and seizure and the further provisions in the Acts itself providing for the procedure to be followed by the authorities under the GST Act, the refusal of the learned Single Judge in the judgment dated 25.10.2019 to declare the detention and seizure to be illegal, in respect of the offences under the GST Acts would be unsustainable.
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