TMI Blog2021 (11) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... 612/- to M/s. Gajmukhi Bullion which is non-existent firm without actual receipt of goods and also availed the ITC. There is no reason to believe that the applicant is involved in availing ITC. There was no genuine transaction as claimed by the applicant. There was verification of supplier as per the GSTR-2A and it was revealed that M/s. Gajmukhi Bullion, Mumbai had availed ineligible ITC facilities from those companies. The investigation also revealed that 11 entities are non-existent. The total ITC availed by the suppliers was amount of ₹ 40.11 Crores approximately. The contention of the applicant that the statement was retracted and there is no corroborative material on record to support the claim of respondents. There sufficient material to deny pre-arrest bail to applicant. According to respondents during the statement recorded on 12th July, 2021 under Section 70 of CGST Act, the applicant has stated that statements dated 31st May, 2021, 16th June, 2021 and 21st June, 2021 have been correctly recorded. There is no retraction of statement dated 25th June, 2021. As per GSTR-2A of applicant the amount of ITC availed by applicant in respect to three firms is total taxabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 3. The applicant had preferred an application for anticipatory bail before the Court of Sessions. The said application was opposed by the respondents by filing reply. Vide order dated 20th August, 2021 the application was rejected by the Sessions Court. While rejecting the said application the learned Sessions Judge had observed that the allegations against the applicant are that he made payment of ₹ 666.37 Crores to M/s. Karnataka Jewellers against deal between M/s. Golden Bullion and Ms. Karnataka Jewellers but received the purchased invoices of ₹ 367.37 Crores from August2020 to October-2020 from M/s. Karnataka Jewellers and ₹ 226 Crores invoices from M/s. Balaji Enterprises and ₹ 115.66 Crores from M/s. Kismat Enterprises including GST respectively for the goods purchased. No payment was transferred from the account of applicant to M/s. Balaji Enterprises and M/s. Kismat Enterprises but to compensate balance amount, invoices of ₹ 305 Crores from M/s. Karnataka Jewellers and he again issued sale invoices of ₹ 305 Crores to M/s. Balaji Enterprises and M/s. Kismat Enterprises against the balance payment, he need to make to both the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kismat Enterprises and M/s. Balaji Enterprises is not supported by any material. The respondents are relying upon the statements of the applicant to establish his complicity. The statement dated 21st June, 2021 was immediately retracted on 22nd June, 2021 by the applicant vide E-mail to Investigating Officer. Retraction was also submitted by hand delivery on 25th June, 2021. The statement dated 12th July, 2021 was also retracted by submitting retraction to the trial Court. The applicant had produced several documents in relation to the transactions with the firms stated therein. The documents includes ledger statement, statement pertaining to transactions with M/s. Karnataka Jewellers, copy of GSTR-3B reflecting transactions with M/s Karnataka Jewellers, ledger documents pertaining to transaction with Kismat Enterprises, returns relating to transaction with M/s. Kismat Enterprises, documents pertaining to transaction with Balaji Enterprises and the copy of the GSTR. It is further submitted that Eway bill is exempted for the business of Bullion/Jewellery by notification dated 30th August, 2017. The applicant has provided and produced all the documents of transaction which indicate t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Union of Indian V/s. Sapana Jain and Ors. delivered by apex Court was arising out of order passed by this Court in Writ Petition No. 1996 of 2019. In the context it was observed or gave cautionary note of granting privilege of pre-arrest bail in with jurisdiction. This Court had rejected Anticipatory Bail Application No.2333 of 2018 wherein similar allegations were made and the order was challenged before apex Court in SLP No.244 of 2019, wherein ad-interim relief was granted by order dated 9th January, 2019. Interim Application No. 85230 of 2019 was moved by GST for vacating interim relief. The same was disposed of by order dated 30th May, 2019. Delhi High Court in the case of Pavan Goyal Ors. V/s. Directorate General of GST intelligence Gurugram, in Bail Application No. 458 of 2021 wherein similar accusation, the applicant therein was granted prearrest bail. The High Court of Kerala in the case of Abdul Shaji V/s. Commissioner of Central Tax and Central Excise in similar accusations granted pre-arrest bail. The Division Bench of this Court in the case of Krishna Murari V/s. Union of India in Writ Petition No. 5484 of 2021, considered scop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r prosecution and not for registration of the FIR. He relied upon the decision of the Division Bench of this Court delivered in Writ Petition (St.) No. 9335 of 2021 dated 6th May, 2021 in the case of Amitkumar Shukla V/s. Union of India Others. It is submitted that in several decisions of this Court and the Apex Court it is held that the respondents have powers to arrest. The reason to believe that the applicant was involved in spelt out from the material on record. In the case of Amit Kumar Shukla the division Bench of this Court had referred to decision in the case of Daulat Sharma (Supra). The Court also referred to Section 69 of the CGST Act which deals with Power of officers to effect arrest and Section 132 of this Act relating to punishment for certain offences. Reference is also made to decision in the case of Arnab Goswami V/s. State of Maharashtra AIR 2021 SC-1. It was observed that decision in the case of Daulat Mehta is different on emergent of facts. It was observed that, considering the magnitude and the scale of alleged fraud involving public money and the critical stage when investigation to get hold of the mastermind/kingpin and other key conspirators ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firms namely M/s. Karnataka Enterprises, M/s. Kismat Enterprises and M/s. Balaji Enterprises and had also not made any payment to two suppliers i.e., M/s. Kismat Enterprises and M/s. Balaji Enterprises. The legal names of three suppliers are i) Ramakka K. Holkar (Proprietor of M/s. Karnataka Jewellers), ii) Prakash Ravaso Lakade (Proprietor of M/s. Kismat Enterprises) and iii) Sunita Bhosale (Proprietor of M/s. Balaji Enterprises). The total ITC availed from those three firms was of ₹ 29.7 Crores. The statement indicate that there was fraudulent availment of ITC from non-existence companies. During the course of investigation statement of Gautam Joshi was recorded under Section 70 of CGST act. He stated that he was ex-employee of the applicant and the firms namely M/s. Karnataka Jewellers, M/s. Balaji Enterprises and M/s. Kismat Enterprises were opened by him on the basis of documents arranged from various sources. The search was conducted. The contention of the applicant that the statement was retracted and there is no corroborative material on record to support the claim of respondents. There sufficient material to deny pre-arrest bail to applicant. Acc ..... 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