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2015 (6) TMI 85 - PUNJAB & HARYANA HIGH COURT

2015 (6) TMI 85 - PUNJAB & HARYANA HIGH COURT - TMI - Default in payment of service tax - punishable office u/s 89 & 90 - Arrest under Section 91 - Interim bail - punishment under the provisions of Section 89(1)(i) (ii) - Held that:- The statements of various persons had been recorded and on the strength of the same, the show cause notice was issued subsequently, after arrest which is yet to be adjudicated upon. The hurry to arrest, in such circumstances prima-facie amounts to a punitive measure .....

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of which, there was no quantification, prima facie, in our opinion, would only infringe on the fundamental rights of the petitioner, as the calculations on the basis of which, he is sought to be arrested, as per the arrest memo, was issued only at his back and without having given him appropriate opportunity to file reply to the show cause notice, which admittedly was issued on 23.04.2015, post his arrest.

Even after seeking instructions, counsels for the respondents could not confirm .....

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extraordinary jurisdiction of this Court under Article 226 of the Constitution of India is liable to be exercised. The interest of the Revenue can be safeguarded by imposing certain conditions which the petitioner will adhere to. - petitioner is granted interim bail subject to the satisfaction of the Chief Judicial Magistrate/Illaqa Magistrate, Rohtak, on the certain conditions - Interim bail granted subject to conditions. - CWP No.10923 of 2015 - Dated:- 29-5-2015 - MR. S.J.VAZIFDAR AND MR. G.S .....

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ise & Service Tax Commissionerate, Rohtak, Haryana and the orders of the Chief Judicial Magistrate, Rohtak, granting judicial remand to the petitioner on 17.04.2015 (Annexure P7) along with dismissal of the bail application orders by the Addl. Sessions Judge, Rohtak. Further challenge has also been raised to the amendments carried out in Sections 89 & 90 of the Service Tax (Chapter V of the Finance Act, 1994) (for short, the 'Act') which came into effect from 10.05.2013 whereby c .....

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hment under the provisions of Section 89(1)(i) (ii) of the Act. 3. Learned Senior Counsel for the petitioner has submitted that the petitioner is the Managing Director of M/s Sanga Energy Pvt. Ltd. (SEPL), a company incorporated and registered with the Registrar of Companies. As per the objects of the company, it is carrying on business in all types of electrical and electric goods including manufacture and providing service of erection of towers, sub-station, solar panels etc. That summons had .....

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t of the service tax. Accordingly, it was submitted that an amount of 36,82,685/- till 14.08.2014 had been deposited and even Service Tax Voluntarily Compliance Encouragement Scheme had been opted for which, however, was not as such adhered to apart from the deposit of 50% of the amount. The petitioner's case is that the balance amount was not deposited on account of the respondents' default as they refused to fill in the recovery form. The arrest made on 08.04.2015 was in a high-handed .....

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tting that investigation was in progress and huge arrears to the tune of 4,09,70,016 towards service tax was due. It was submitted that the Courts below had rightly rejected the bail application and the petitioner had a remedy by filing a appropriate petition before this Court on the criminal side. Reliance was also placed upon the judgment of the Supreme Court in Kartar Singh Vs. State of Punjab 1994 (3) SCC 569 to submit that the power to grant bail should be exercised in only rare and appropr .....

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petitioner is to be granted the benefit of interim relief, as admittedly, at this stage, there is neither any adjudication order passed against him, quantifying the amount of arrears of service tax which he has alleged to have received nor any complaint has been filed against him under the provisions of the Act, for the violation of the provisions under which he has been arrested, mainly on the ground that the arrears are more than 50 lacs and therefore, there is a power to arrest. 6. We feel th .....

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ure and others of job workers/works contract, which in some cases, does not come within the ambit of service tax clause and secondly, different slabs are provided for the same. 7. A perusal of the show cause notice which was issued on 23.04.2015, i.e. after the date of arrest on 08.04.2015, would go on to show that the petitioner was carrying on the allied business since 2007. The said show cause notice also goes on to show that work had been done from the year 2009-10 onwards. The statements of .....

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on from the petitioner which goes contrary to the argument that investigation is in progress and his personal custody is required. Once such was the situation, the requirement of arrest for the arrears due for the last more than 4 years, of which, there was no quantification, prima facie, in our opinion, would only infringe on the fundamental rights of the petitioner, as the calculations on the basis of which, he is sought to be arrested, as per the arrest memo, was issued only at his back and w .....

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of the Revenue is protected, during the pendency of the adjudication proceedings. He also made further statements to establish the petitioner's bonafides which we will incorporate in our order. 9. The said offer, which came up yesterday, is also not acceptable to the respondents, after instructions. It is, thus, apparent that the respondents have presumed that it is proved that an offence has been committed and have already adjudicated on the criminal liability of the petitioner. It was put .....

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question as to whether the offence has been made out or not which is, now, sought to be contended on the basis of alleged admissions made by the petitioner with the respondent-authorities. 10. Accordingly, we are of the opinion that further detention of the petitioner, in such facts and circumstances, amounts to taking away his liberty in the absence of any complaint having been filed against him and it would be a fit case where the extraordinary jurisdiction of this Court under Article 226 of .....

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(2014) 8 SCC 273, wherein it has been noticed that 'the attitude to arrest first and then proceed with the rest is despicable.' The principles which have been laid down to police authorities also talk about the applicability to offences which are punishable and which can extend upto 7 years which is the case under the provisions of this Act also. 11. Accordingly, the petitioner is granted interim bail subject to the satisfaction of the Chief Judicial Magistrate/Illaqa Magistrate, Rohtak, .....

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