Whether adjudicating authority canfreeze bank account without adjudication?

PJ/CASE LAW/2015-16/2761

Case:-R.V. MAN POWER SOLUTION VsCOMMR. OF CUS. & CENTRAL EXCISE

Citation:-2014 (33) S.T.R. 23 (Uttarakhand)

Brief Facts:-The counter affidavit and the rejoinder affidavit, filed today in the Court, are taken on record.
By this writ petition, the petitioner, has challenged the order dated 6-2-2013 issued by the Assistant Commissioner, Customs and Central Excise, Division Dehradun, Uttarakhand directing the Bank to freeze the accounts of the petitioner.
The fact, which is relevant for the purpose of this case, is sought to be hereunder.
On 27-11-2012 respondent No.1 issued show cause notice calling upon the petitioner to file reply within thirty days from the date of receipt of the above show cause notice. In the show cause notice, the Department alleges that a sum of 5,04,66,099/- is allegedly due and payable on account of Service Tax by the petitioner for the period from December, 2008 to March, 2012 and a sum of Rs. 52,75,032/- alleged to have been due and payable by the petitioner on the same account for the period up to 29th September, 2012. From the tenor of the show cause notice, it appears that the aforesaid decision is tentative and not the final adjudication and that is why reply was invited for personal hearing. On receipt of the show cause notice, the petitioner wrote a letter on 4-1-2013 requesting the Commissioner, Customs and Central Excise, Meerut, Uttar Pradesh to supply the documents on which the show cause notice was relied. On 18-1-2013, the respondent supplied all the documents relied on. Thereafter on 11-2-2013, the reply was submitted and the same was not decided as yet. Without deciding the matter finally and without calling for any hearing, the respondent authority issued impugned order invoking power under Section 87 clause (b) of the Finance Act, 1994. By this notice, all the Bank accounts of the petitioner have been freezed, so much so, the petitioner cannot withdraw any amount from the Bank.
In this writ petition only contention is that whether the aforesaid impugned order is legally valid under Section 87 of the Finance Act, 1994.

Appellant contentions:- Learned counsel for the petitioner submits that the respondent-authority has no power to freeze any account which is pending for final adjudication. Even the power of freezing of the account is not provided in the said Section of Finance Act. It can only recover the money due and payable. Admittedly, in this case there had been no adjudication, no decision on the amount being payable. At the moment, the said show cause notice, mentioning the amount can be said to be merely a demand and a tentative decision and final adjudication has to be done as mentioned in the show cause notice.

Respondent contentions:- Learned counsel for the respondents revenue contends that the Service Tax has been recovered by the respondent on behalf of the Revenue and the petitioner is merely trustee to hold the amount and this amount is due and payable by him, therefore, adjudication, so to say, is a mere formality as the amount has already been adjudged by the respondents. Even provisional adjudication is good enough to invoke the provision of Section 87 of the Finance Act. He also contends that in the event this order is interfered with at this stage, the petitioner will withdraw the entire amount from the Bank Account and in the event if the amount is finally adjudicated, the Department will have no remedy to recover the same.

Reasoning of Judgment:-After hearing the learned counsel for the parties, the issue raised for decision by this Court is that whether show cause notice issued is legally valid on the facts and circumstances of this case.
Admittedly the adjudication has not been completed and it was found substance in the submission of the learned counsel for the petitioner that the amount mentioned in the show cause notice is merely a demand and not even the tentative adjudication. Section 87(b) of the Finance Act, 1994 reads as under:-
“87.Where any amount payable by a person to the credit of the Central Government under any of the provisions of this Chapter or of the rules made thereunder is not paid, the Central Excise Officer shall proceed to recover the amount by one or more of the modes mentioned below :-
(a) ………..

(b)	(i)	the Central Excise Officer may, by notice in writing, require any other person from whom money is due or may become due to such person, or who holds or may subsequently hold money for or on account of such person, to pay to the credit of the Central Government either forthwith upon the money becoming due or being held or at or within the time specified in the notice, not being before the money becomes due or is held, so much of the money as is sufficient to pay the amount due from such person or the whole of the money when it is equal to or less than that amount;
	(ii)	every person to whom a notice is issued under this section shall be bound to comply with such notice, and in particular, where any such notice is issued to a post office, banking company or an insurer, it shall not be necessary to produce any pass book, deposit receipt, policy or any other document for the purpose of any entry, endorsement or the like being made before payment is made, notwithstanding any rule, practice or requirement to the contrary;
	(iii)	in a case where the person to whom a notice under this section is sent, fails to make the payment in pursuance thereof to the Central Government, he shall be deemed to be an assessee in default in respect of the amount specified in the notice and all the consequences of this Chapter shall follow;

(c) ………..
(d) ………..”
According to High Court, going by the language of Section 87 of the Finance Act that any amount payable means that amount adjudged after hearing the show cause notice and this provision of Section 87 is one of the methods of recovery of the amount due and payable after adjudication is done. Moreover, it was found from the language of clause (b), there is no power to freeze the Bank accounts. At the most, if it is applied, the money can be claimed from the Bank itself. Such claim can be made only when the final adjudication has been done after quantifying the amount due and payable by the assessee.
Under the circumstances, it was held that the impugned order freezing the Bank accounts is not sustainable in the eye of law as this has been passed without having any jurisdiction. The same is accordingly set aside. Taking totality of the fact of the case, High Court passed the following order.
The petitioner must submit reply within fifteen days from the date of receipt of the copy of this order. On receipt of the reply, the appropriate authority shall hear out the matter within four weeks from the date of receipt of such reply. Further it was made clear that in spite of service, the petitioner does not turn up before the authority concerned at the time of final hearing, the authority concerned shall free to adopt lawful procedure permissible under the law. It was also made clear that in the event, no reply is submitted within the above time, appropriate authority may pass appropriate order in accordance with law after quantification of the amount due and payable. Of course, it would be open for the respondent authority, if so advised, to issue orders strictly in terms of Section 87 Clause (b) of the Finance Act, 1994 for recovering the amount by issuing a fresh order after adjudication. In the interest of justice, High Court restrained the petitioner from transferring, alienating, disposing of the fixed asset and properties save in usual course of business till the final adjudication is completed. List of assets, duly certified by the auditor shall be supplied to the respondent revenue by the petitioner. This list of assets shall be supplied within seven days from the date of receipt of copy of this order.
With the aforesaid observation, the writ petition is allowed.
No order as to costs.

Decision:-Petition allowed.

Comment:-The crux of the case is that adjudicating authority cannot freeze the bank account of an assessee merely on issuing a show cause notice because amount which is mentioned in show cause notice is merely a demand and not even the tentative adjudication. Such claim can be made only when the final adjudication has been done after quantifying the amount due and payable by the assessee.Moreover, under Section 87 of Finance Act, 1994 any amount payable means that amount adjudged after hearing the show cause notice and Section 87 ibid is one of the methods of recovery of amount due and payable after adjudication is done.

Prepared By:Meet Jain

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PJ/CASE LAW/2015-16/2761

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