TMI Blog2020 (9) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... In the absence of there being specific material placed before this Court, at this stage that the applicant had made any attempt to tamper with the prosecution witnesses or in any manner indulged in adversely affecting investigation or that he is at flight risk or that keeping him in jail would serve any purpose and last but not the least, there are no serious allegations of he misusing liberty while on interim bail and that the maximum punishment which could be awarded is five years, this Court is inclined to allow this application - Bail is granted subject to conditions imposed. Application allowed. - MCRC No. 1578 of 2020 - - - Dated:- 17-9-2020 - Shri Justice Manindra Mohan Shrivastava, J. For the Applicant : Shri Vivek Kumar Tankha, Senior Advocate along with Shri Ankur Chawla, Shri Arshdeep Singh, Shri Rahul Tamaskar and Shri Varun Tankha, Advocates. For the State : Shri Manish Sharma, Counsel for Respondent/Director General of GST, Intelligence along with Shri Salman Imtiaz Hussaini, Senior Intelligence Officer. CAV Order Present bail application has been filed by the applicant, one of the Directors in M/s. Dadhichi Iron and Steel Pvt. Ltd. said to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing credits, submission of returns, information or genuineness of any transaction, they are required to carry out scrutiny under Section 61 of the CGST Act to determine the correctness of the returns filed. If any discrepancy is found, enquiry is called for, an assessee is required to be afforded opportunity of explanation. It is only when such explanations are not found satisfactory, consequential orders may be passed canceling availing of credit and / or passing such other orders including payment of additional tax, interest, penalty etc. The argument is that it is only when the authorities find it to be a case of wrong availing of Input Tax Credit that it may follow registration of offence under the Act, punishable under Section 132 thereof. According to him, the intelligence authorities straightway raided premises and arrested the applicant without there being any scrutiny, enquiry or any order of assessment against the applicant by the competent assessment authorities and without there being any finding that the applicant has wrongly availed Input Tax Credit. Learned counsel for the applicant would submit that recourse to police power and registration of criminal case has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws that offence cannot be categorised as a grave offence. Therefore, cardinal principle that bail is a rule and rejection of bail is an exception needs to be followed in the present case. Lastly, it is submitted that the applicant was granted temporary bail on his medical condition which continues and during pandemic situation, the applicant, suffering from other ailments, is susceptible to infection, if he is kept in custody. In support of his contention, learned counsel for the applicant mainly relies upon C. Pradeep v. The Commissioner of GST and Central Excise Selam and anr. [SLP (CrL) No.6834/2019 Dt.06/08/2019, Sapna Jain v. Union and ors. BOM HC CR.W.P.1996/2019 Dt.11/04/2019, Sapna Jain v. Union and ors BOM HC W.P.No.1996 of 2019 Dt.08/07/2019, Akhil K Maggu and Anr. v. Dy. Director, Directorate GST Intelligence and ors., Chandigarh HC CWP24195/2019 15/11/2019, Makemytrip (India) Pvt. Ltd. v. Union of India, 2016 SCC Online Del 4951, P.V. Ramana Reddy v. Union of India, HC of Telangana WP 4764/2019, Vimal Y. Goswami v. State of Gujarat, 2019 SCC online Guj 1496, Cleartrip Private Ltd., Mumbai and ors. v. Union of India, 2016 SCC Online Bom 4836, Dr. Rini Johar v. State of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n stated by the applicant and uploaded in the GST portal, were found to be fake firms having only paper registration. In this manner, in the investigation so far concluded, the applicant has been found to have wrongly availed Input Tax Credit to the tune of ₹ 62 crores. He would further submit that the investigation is still going on and in course of time, many more information may be revealed involving much more amount of Input Tax Credit through fraudulent transaction of sale, purchase and supply of iron and steel products. He would next submit that the applicant is misusing his liberty as he is not cooperating with the investigation. In order to interrogate him, twice summons were issued to him, first on 15/06/2020 and second on 11/07/2020. The first summons returned with the noting that the applicant refused to accept. Second summons are not yet received back. According to the respondents, the applicant is avoiding to appear before the authorities. He would also submit that the applicant gave statement under Section 70 of the CGST Act and admitted that he had prepared all the invoices which are fake and there are no corresponding transactions of sale and supply of iron an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eliance has been placed on various orders / interim orders passed by different High Courts in the country. Those decisions / orders are C. Pradeep (supra), Sapna Jain (supra), Akhil K Maggu (supra), Makemy Trip (India) Pvt. Ltd. (supra), Vimal Y. Goswami (supra), Cleartrip Pvt. Ltd. (supra) and Jayachandra Alloys Pvt. Ltd. (supra). These decisions have been relied upon to buttress submission that unless assessment proceedings are drawn and orders are passed to the effect that Input Tax Credit has been wrongly availed, no prosecution could be launched. Therefore, it is argued that statutory raid of premises and institution of criminal case followed by arrest by registering offence under Section 132 of CGST Act itself is misuse of police power granted to the respondent authorities. On the other hand, learned counsel for the respondent has heavily relied upon orders passed by the High Court of Telangana in the case of P.V. Ramana Reddy (supra) wherein, it has been held that launching of prosecution need not wait till passing of assessment order and law does not preclude institution of criminal case by registering offence once it is found that Input Tax Credit has been availed by an as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen he had remained in custody for one month before grant of interim bail. Whatever information was required to be gathered and interrogation done, has already been done. The applicant has not misused his liberty during the period he remained on interim bail. It is also one of the main grounds taken that in order to judge the gravity of offence, the maximum punishment which could be awarded is also required to be taken into consideration which in the present case is five years. One of the main insistence on which prayer for grant of bail is made is that the offence itself is compoundable one and even during the course of argument on behalf of the respondent, it was stated that if any offer is made, it will considered in accordance with law as the offence is compoundable one. 10. In the backdrop of nature of allegations against the applicant, it is found that in the present case, the applicant was kept in custody for about a month. Thereafter, he was granted interim bail by this Court and till date, there is no serious allegation leveled against the applicant that while on interim bail, he was either repeatedly involved in tampering with the prosecution witnesses or in any manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P. Chidambaram (supra), the fundamental principles with regard to grant of bail allowed by the Supreme Court in the Constitution Bench judgment in the case of Shri Gurbaksh Singh Sibbia (supra) were re-iterated as below - 19. On the consideration as made in the above noted cases and the enunciation in that regard having been noted, the decisions relied upon by the learned senior counsel for the appellant and the principles laid down for consideration of application for bail will require our consideration. The learned senior counsel for the appellant has relied upon the decision of the Constitution Bench of this Court in the case of Shri Gurbaksh Singh Sibbia (supra) with reference to paragraph 27 which reads as hereunder: It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra v. King-Emperor [AIR 1924 Cal 476, 479, 480 : 25 Cri LJ 732] that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. Further, observation made in the case of Sanjay Chandra (supra) which was also a case of financial irregularities was also considered as below - 21. The learned senior counsel for the appellant has also placed reliance on the decision on the decision in the case of Sanjay Chandra (supra) with specific reference to paragraph 39 which reads as hereunder: Coming back to the facts of the present case, both the courts have refused the request for grant of bail on two grounds: the primary ground is that the offence alleged against the accused persons is very serious involving deeprooted planning in which, huge financial loss is caused to the State exchequer; the secondary ground is that of the possibility of the accused persons tampering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property and forgery for the purpose of cheating using as genuine a forged document. The punishment for the offence is imprisonment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence provides so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case to case basis on the facts involved therein and securing the presence of the accused to stand trial. 15. In the absence of there being specific material placed before this Court, at this stage that the applicant had made any attempt to tamper with the prosecution witnesses or in any manner indulged in adversely affecting investigation or that he is at flight risk or that keeping him in jail would serve any purpose and last but not the least, there are no serious allegations of he misusing liberty while on interim bail and that the maximum punishment which could be awarded is five years, this Court is inclined to allow this application. This Court also takes notice that the interim bail was granted to the applicant on health conditions and when later on, interim bail was not continued, the said interim protection was continued by the Supreme Court till final hearing of the b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
