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DEWANAND BHAGIRATH GUPTA Versus STATE OF GUJARAT AND 1

2016 (7) TMI 727 - GUJARAT HIGH COURT

Bail application - Criminal prosecution for non payment of service tax - monetary jurisdiction - It was submitted that offence under section 89(1)(d)(ii) of the Finance Act has been inserted to be cognizable and punishment has been enhanced from three years to seven years and made the offence non-bailable. Thus, on and from 10.5.2013 if a person has collected any amount as service tax but failed to pay the amount so collected to the Central Government and if it exceeds ₹ 50.00 lakhs, then .....

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of jail, it cannot be said to be compliance of bail conditions by the applicant and thus, learned Additional Sessions Judge had passed impugned order which is legal and proper and it does not warrant any interference in exercise of revisional jurisdiction more particularly when it is noticed that by one way or the other, the applicant is prolonging the time with calculative move just not to pay the amount which had prima facie appears to have been pocketed. It is also to be noted that the inter .....

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Y BUCH, ADVOCATE, MR KL PANDYA, APP CAV JUDGMENT 1. Rule. Learned Addl. Public Prosecutor, Mr. K. L. Pandya for the respondent No.1 and learned advocate, Mr. Hriday Buch for the respondent No.2 waive service of notice of rule. 2. This Criminal Revision Application has been filed by the applicant under section 394 read with section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code for short) to set aside order dated 11/9/2014 passed in Criminal Misc. Application No. .....

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Central Excise Case No.F.No.IV/6- Prev/16/Gr.G/2014 before the Court of learned Chief Judicial Magistrate, Vadodara. In pursuance of said complaint, the applicant was arrested. The applicant thereafter preferred application for bail before the learned Magistrate. As the said application was rejected, he approached for bail before the learned Sessions Court at Vadodara by way of filing Criminal Misc. Application No.338 of 2014. However, said application was allowed vide order dated 28/2/2014 wit .....

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ng Criminal Misc. Application No.641 of 2014 for modification of the conditions. During the pendency and hearing of said application, condition 2(h) was modified and applicant was permitted to leave State of Gujarat to collect the amount in order to comply with condition 2(b). Thereafter, the application was partly allowed vide order dated 1/5/2014 whereby condition 2(b) was rejected while condition 2(h) was suspended for a further period of two months. He, therefore, approached this Court by wa .....

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ed to comply with the conditions of paying the outstanding amount as per the order dated 28/2/2014 passed in Criminal Misc. Application No.338 of 2014 by the learned 4th Additional Sessions Judge, Vadodara, the present respondent No.2-original complainant filed an application being Criminal Misc. Application No.875 of 2014 for cancellation of bail before the Sessions Court. Upon hearing the learned advocates appearing for the parties, said application was allowed vide order dated 11/9/2014 passe .....

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ing him on bail and thereafter, an amount of ₹ 10,00,000/- was paid to the department. He further submitted that one of the companies has directly paid an amount of ₹ 12,00,000/- to the department pursuant to issuance of notice under section 87 of the Act and thereafter, many other companies have paid amounts directly to the department, however, as he had failed to recover substantial amount from firms like Essar Projects, Shapoorji Pallonji Limited and I.V.R.C.L., he could not clear .....

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, the applicant could not pay the outstanding amount. He further submitted that the applicant has given an advertisement in the newspapers to sell off his house and he will pay off all the outstanding amount upon sale of the said house and therefore, he prayed to set aside the order dated 11/9/2014 passed by the Sessions Court in Criminal Misc. Application No.875 of 2014. 6. Mr. Hriday Buch, learned advocate for the respondent No.2, submitted that the applicant was arrested for the offence under .....

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e authority, the applicant was released on bail on certain conditions including the conditions to deposit 30% of the amount within a period of two months of his release, to deposit 10% of the outstanding amount till the due amount of tax is wholly paid and also not to leave the State of Gujarat without prior permission of the trial court. He further submitted that although the applicant deposited ₹ 20,00,000/- to get him released on bail, he did not comply with the condition of depositing .....

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of bail which was allowed by the impugned order. It was pointed out by Mr.Buch that the applicant had filed Criminal Misc. Application No.6662 of 2014 for modification of condition 2(b) of the order dated 28/2/2014 passed in Criminal Misc. Application No.338 of 2014 and to grant further time of two months in paying 30% of the outstanding amount. Therein, he also sought interim relief restraining the respondent No.2 from taking any coercive action against the applicant without joining the respon .....

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on of condition No.2(c) of the order to deposit 10% of the amount every month was also rejected by the learned Additional Sessions Judge, Vadodara, vide order dated 16/10/2014. He further submitted that as the applicant did not pay the outstanding amount of ₹ 57,22,912/-, he was issued with a show cause notice as to why penal action should not be taken against him, but he did not reply to the said notice. He pointed out that the applicant had floated another company in the name of M/s DHJ .....

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14, 12/5/2014 and 27/5/2014 at the department were returned with the endorsement as not delivered and therefore, notice was effected by affixing at the last known address by drawing panchnama on 17/4/2015. He further submitted that in view of the conduct of the applicant in evading payment of service tax to the public exchequer and in view of noncooperation of the applicant in investigation, he has urged that present revision application deserves to be dismissed. 7. This Court has gone through t .....

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son has collected any amount as service tax but failed to pay the amount so collected to the Central Government and if it exceeds ₹ 50.00 lakhs, then only the accused will be liable for punishment upto seven years. Drawing attention of this Court to the break-up of service tax liability shown by the Department for the period 2013-2014 till 31.12.2014, service tax liability even assessed by the Department was ₹ 30,32,939/- only and thus, no provision under section 89(1)(d)(ii) of the .....

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even depositing the entire dues, it is ignorance of law and the same is not binding on the accused. In light of the above submissions, I have carefully perused the grounds (A) to (F) made in para 4 of the memo of this application as well as the impugned order dated 11.9.2014 passed by the learned additional Sessions Judge below Exh.9 in Criminal Misc. Application No.875 of 2014. The said Criminal Misc. Application No.875 of 2014 was preferred by the Superintendent, Central Excise, Customs and Se .....

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s been cognizable and punishment has been enhanced from 3 years to 7 years on and from 10.5.2013. Thus, when the above referred order dated 28.2.2014 was passed in Criminal Misc. Application No.338 of 2014 by the court and when the order dated 11.9.2014 was passed in Criminal Misc. Application No.875 of 2014, above legal position was very much there and not a whisper about the same has been made by learned advocate for the applicant herein and now when the respondent No.2 had preferred applicati .....

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application in challenging the impugned order dated 11.9.2014 passed in Criminal Misc. Application No.875 of 2014 cancelling bail of the applicant are not germane to the facts of the present case and the impugned order cannot be revised by this Court on the basis of such grounds because the impugned order of cancelling bail had been passed by the learned Sessions Judge for not complying with bail conditions of the applicant and the said grounds referred above are beyond the scope of the subject .....

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