9911796707
TMI Blog2020 (12) TMI 1309X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner to the learned Magistrate for deciding it afresh. 3. The applicant (accused) is one of the Directors in M/s. Germanium Trading Pvt. Ltd., Nerul, Navi Mumbai, which is engaged in the business of trading. According to the prosecution, the said Company was not found operating at its registered address and accordingly a panchanama dated 4/3/2020 was drawn. The investigation conducted by the Anti Evasion Officers of Central Goods and Service Tax and Central Excise (CGST) Belapur revealed that the said Company was engaged in "Circular Trading" and issuance of fake invoices, for the purpose of availing Input Tax Credit (ITC) and passing it off, to other companies, without actual trading / movement of goods, which is an offence under Section 132 (1)(b)(c) of the Central Goods and Services Act, 2017 (' the CGST Act' for short). According to the prosecution, said offence is cognizible and non-bailable as per Section 132(5) of the said Act. In short, according to the prosecution, the said Company has evaded GST approximately to the extent of Rs. 541 Crores. 4. The applicant came to be arrested on 5/9/2020. The applicant sought bail before the learned Judicial Magistrate First Class a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned order, has partly allowed the application. The learned Sessions Judge while setting aside the order dated 25/9/2020, passed by the learned Magistrate, has directed the learned Magistrate to hear and decide the application, afresh on its own merits and respondent has been directed to surrender within two weeks from the date of the order. 8. I have heard Mr. Kadam, the learned counsel for the applicant and Mr. Mishra, learned Special P.P. for the first respondent. 9. The learned counsel for the applicant pointed out that the applicant at the outset had shown willingness to compound the offence which is permissible under Section 138 of the said Act. It is submitted that the first respondent has not yet ascertained or adjudicated the exact amount, and in the absence thereof, the amount which is required to be deposited alongwith interest and penalty, if any, cannot be ascertained. It is submitted that to show bonafides, the applicant has already deposited an amount of Rs. 25 Lakhs by challans dated 21/10/2020 and 15/11/2020. 10. Mr. Kadam, the learned counsel for the applicant, has submitted that the bail granted, cannot be lightly cancelled, unless there are compelling circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s required to be reheard by the learned Magistrate. It is submitted that in the facts and circumstances of the case, no purpose would be served by asking the applicant to surrender pending the hearing of the application by the learned Magistrate. 13. The learned Special P.P. for the first respondent, has submitted that the offence is serious. There is evasion of substantial amount of tax from July 2017. It is submitted that till date there is no formal application filed for compounding. It is submitted that it is otherwise pre-mature as the investigation is still in progress. It is submitted that the deposit of Rs. 25 Lakhs is otherwise insufficient to show the bonafides, particularly in the context of the amount which is found to be evaded. Reliance is placed on several decisions including the decision of the Supreme Court in the case of Nimmagadda Prasad Vs. Central Bureau of Investigation (2013) 7 SCC 466. He submitted that all that the Sessions Judge has done is to remand the applicant to the learned Magistrate. It is submitted that once the bail is cancelled, the applicant is bound to surrender. 14. I have carefully considered the rival circumstances and the submissions made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gwith interest and penalty as may be decided by the Competent Authority as per rules. It is in this context that the contention on behalf of the first respondent that the claim based on compounding is pre-mature has to be considered. It is necessary to note that the applicant has deposited an amount of Rs. 25 Lakhs as against the claim of the prosecution that the evasion is to the extent of Rs. 541 Crores. It is in this context again the contention on behalf of the respondent about the inadequacy or unsustainability of the ground based on compounding has to be considered and appreciated. 17. I am conscious of the fact that the learned Sessions Judge has remitted the matter to the learned Magistrate and therefore it is neither necessary nor appropriate to appreciate the material in details or to record any final conclusion lest it would prejudice either the applicant or the prosecution before the learned Magistrate. I, therefore, refrain from making any comments on the cases cited. 18. I have gone through the order passed by the learned Sessions Judge and in the facts and circumstances of the case, I find that the learned Sessions Judge was justified in interfering with the order ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
