1. Sri Praveen Kumar, learned counsel for the applicant – Syed Aif Ali, Sri D.C. Mathur, learned counsel for respondent no. 2 – Director General of GST, Sri Nagendra Srivastava, learned AGA for the State-respondent no. 1.

2. Sri Mathur submits that there is technical error in impleading Union of India through Director General of GST whereas Union of India is to be impleaded through Secretary, Revenue to Union of India and Director General of GST is a separate entity.

3. Sri Praveen Kumar undertakes to rectify this technical error by filing appropriate application for amendment.

4. This application for grant of anticipatory bail application has been filed by the applicant on the basis of apprehension that earlier summons were issued to one of the Directors of M/S BCC Cement Pvt. Ltd, which is a trading company and in pursuance of said summons dated 21.1.2021 the concerned Director who had approached the authorities was arrested. It is submitted that M/s BCC Cement Pvt Ltd is a trading company which procures cement from different manufacturers and supply to builders / purchasers. It is submitted that as per information available, with the applicant who is a Director of one of the purchaser companies namely, Roshan Real Estate Pvt. Ltd and which has been purchasing cement from M/s BCC Cement Pvt. Ltd has been summoned by issuance of summons in April, 2021.

5. It is submitted that allegation on M/s BCC Cement Pvt Ltd is in regard to defalcation in accounting of input tax credit and it is alleged that M/s BCC Cement Pvt Ltd neither procured any cement nor supplied it but has generated false and fabricated invoices so to take advantage of input credit.

6. Counsel for the applicant submits that, now proceedings have been initiated under section 74 of the Central Goods Service Tax, 2017 (hereinafter referred to as the Act only) for determination of tax, not pay or short paid or erroneously refunded or input tax credit wrongly availed or utilized by reason of fraud or any wilful mis-statement by suppression of facts and for such determination no proceedings can be undertaken to arrest the applicant in terms of the provisions contained in section 69 of the Act.

7. Sri Mathur in his turn submits that summons have been issued invoking authority under section 70 of the Act. He further submits that purpose of issuance of summons is to enable a party to give evidence and produce documents in support of their claims and once such documents are procured then only question of initiating proceedings under chapter XV which deals with demand and recovery, will come into action.

8. Sri Mathur submits that merely summoning of one of the Directors of the purchaser company cannot be construed to be an intention on the part of the summoning authority to arrest the Director in as much as to arrest or not can be taken only on determination of liability, thereafter action is to be taken in terms of the provisions contained in Section 132 of the Act.

9. Sri Mathur, however submits that section 139 of the Act provides for compounding of offence and therefore whole scheme of the Act is such that an officer not below the rank of Joint Commissioner, if has reasons to believe that a person has suppressed any taxable transaction then such officer is authorized under Section 67 of the Act, to carry out inspection, search and seizure. Sub para (a) and (b) of Section 67 of the Act are reproduced as under:

(a) a taxable person has suppressed any transaction relating to supply of goods or services or oth or the stock of goods in hand, or has claimed input tax credit in excess of his entitlement under this Act or has indulged in contravention of any of the provisions of this Act or the rues made thereunder to evade tax under this Act; or

(b) any person engaged in the business of transporting goods or an owner or operator of a warehouse or a godown or any other place is keeping goods which have escaped payment of tax or has kept his accounts or goods in such a manner as is likely to cause evasion of tax payable under this Act.

10. It is submitted that power to summon is not equivalent to arrest or punish and power of arrest is to be exercised only after determination of the liability in terms of the provisions contained in the Act.

11. Sri Mathur submits that at the stage of summon there is no intention to arrest a person so summoned but the intention is to afford an opportunity to person so summoned to give evidence and produce documents so to allay the apprehension of the concerned officer in regard to evasion of tax/duty.

12. In view of such statement given by Sri D.C. Mathur, counsel for respondent no. 2, application for grant of anticipatory bail application is premature. This court has no reason to doubt the undertaking given by Sri Mathur that unless and until after receiving evidence and documents produced by the applicant, if satisfaction is arrived in terms of their being any suppression of fact or mis-statement or improper availment of input tax credit, no action is warranted to be taken to arrest the applicant.

13. In view of such facts, present application seeking anticipatory bail merely on the basis of apprehension and taking this apprehension into consideration and undertaking furnished by Sri Mathur, I am of the opinion that application is premature and is not maintainable at this stage. Accordingly application is dismissed.