Order Date - 05 October 2023

Parties: M/s. SSK Devcon Private Limited & Satyendra Singh Kushwah Vs The State of Jharkhand & Manish Vijay, Deputy Commissioner, Central Goods and Service Tax and Central Excise

Facts -

• The Petitioner, M/s. SSK Devcon Private Limited, was alleged that they  has been providing various Taxable Services to various Service recipients since December, 2017, but has not made payment of GST from January, 2018 to November, 2018 before initiation of the investigation.
• It was further alleged that the petitioner deliberately ignored the summons issued by the Central Goods and Service Tax Department under Section 70 of the Central Goods and Service Tax Act, 2017 and did not appear at any date against four summons issued to the petitioner. Since the petitioner did not appear against the summons, proceeding under Section 174 of the Indian Penal Code is initiated against the petitioner.

Issue -

• Whether proceeding under Section 174 of the Indian Penal Code can initiated if the petitioner did not appear against the summons?

Order -

• The Single Bench of Hon’ble High Court observed that it appears that there is no further proceeding against the petitioner for determination of any tax not paid and that provision is there in Section 73 of the CGST Act, 2017. Thus, it is an admitted fact that the amount in question has already been paid. 
• The documents on record clearly suggest that summons have been replied, which was also entertained by the authority by way of granting time. Thus, it cannot be said that this is a case of non-compliance of summon issued by the authority concerned.
• Further there are procedure prescribed under the CGST Act, 2017 for penalty under Section 125 which restricted to a fine of Rs.25,000/- only and none of the failure prescribed in Section 132 of the said Act is the subject matter of the present cases and further Section 70 of the said Act speaks of procedure to be adopted for summoning, that will in accordance with the Code of Civil Procedure and further considering that the reply to the summons were entertained by the authority concerned, to allow to continue the proceeding under Section 174 of the Indian Penal Code against the petitioners will amount to abuse of process of law.
• Hence the entire criminal proceedings including the order taking cognizance dated 19.06.2019, pending in the Court of the learned Judicial Magistrate, 1st Class, Ranchi are quashed. The writ petitions are allowed.