JUDGMENT :

R.D. DHANUKA, J.

Rule. Mr.Mishra, learned counsel for the respondents waives service. By consent of parties, writ petition is heard finally.

2. By this petition filed under Article 226 of the Constitution of India, the petitioner has prayed for a declaration that the circular dated 23rd February, 2021 is ultra vires the provisions of the Central Goods and Services Tax Act, 2017 (for short CGST Act, 2017) or in the alternative to read down the circular dated 23rd February, 2021 to make the recording of reasons or grounds of attachment mandatory in the attachment order or Form DRC-22 issued in terms of Rule 159(1) of the CGST Rules.

3. The petitioner also prays for writ of certiorari for quashing and setting aside the impugned freezing orders dated 7th December, 2021 issued by the respondent no.3 and further seeks writ of mandamus in terms of prayer clause (d) of the petition.

4. It is the case of the petitioner that the petitioner purchased the goods locally from wholesale traders which are consolidated at the level of the wholesale trader and thereafter are dispatched to the warehouse of the logistics company, from where the goods are sent to the CFS Terminals at the customs stations. The said goods are released from export only after due verification by the customs officers. On 18th February, 2021, the office of the respondent no.3 initiated investigation against the petitioner and conducted search at the petitioner’s premises during which the original documents were seized.

5. Summons dated 18th February, 2021 were served by hand during the course of search. The statement of the petitioner’s employees were recorded on the very same day. On 23rd February, 2021, the CBIC issued the circular laying down detailed guidelines for field formations in relation to the attachment under section 83 of the CGST Act. On or about 7th December, 2021, the petitioner was informed by its banks that the accounts of the petitioner with various banks had been frozen by the office of the respondent no.3. The petitioner accordingly filed this writ petition.

6. Mr. Chaudhari, learned counsel for the petitioner invited our attention to section 83 of the CGST Act and would submit that the attachment order under section 83 has to be in writing and has to be issued in FORM GST DRC 22 under Rule 159(1) in the manner as may be prescribed. Learned counsel invited our attention to the impugned letter of provisional attachment and would submit that the said letter of provisional attachment was not addressed to the petitioner but was addressed to the bank manager with a copy caused to the petitioner. He submits that the said provisional order was not in compliance with the section 83 of the CGST Act and was not issued in the manner prescribed under Rule 159.

7. Learned counsel invited our attention to the circular dated 23rd February, 2021 and more particularly, clauses 3.1.2, 3.1.4 and 3.1.5 and would submit that unless the opinion formed by the Commissioner is communicated to the petitioner, the petitioner would not be able to raise any objection. He submits that the said circular providing that the Commissioner shall record such an opinion on file and not communicate the same to the taxable person would not amount to an order of provisional attachment under section 83 of the CGST Act. In support of this submission, learned counsel placed reliance on the judgment of the Hon’ble Supreme Court in case of Radha Krishan Industries vs. State of Himachal Pradesh, 2021(48) G.S.T.L. 113(S.C.) and in particular paragraph (48) and would submit that none of the principles laid down by the Hon’ble Supreme Court in the said judgment for exercising powers under section 83 of the CGST Act have been complied with by the Commissioner.

8. Learned counsel for the petitioner placed reliance on the judgment of the Hon’ble Supreme Court in case of Bachhittar Singh vs. State of Punjab and Another, 1962 Supp (3) SCR 713 and in particular paragraph (9) and would submit that any o