TMI Blog2022 (8) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... tor With Mr Pranav Trivedi, Additional Public Prosecutor For the Respondent(s) No. 2,3 : Rule Served CAV ORDER 1. This application has been filed under Section 439 of the Code of Criminal Procedure for regular bail in connection with the File No. ACST(3)/ENF-1/SUMMONS/2020-21 and DCST /ENF-2/AC-6/CONFIDENTIAL/2021-22 registered with Office of the Chief Commissioner of State Tax, Enforcement, Coordination Branch, Ahmedabad. 2. The applicant was arrested on 23.02.2022 by the Assistant Commissioner of State Tax-4, Enforcement Division 2 (the respondent No.3), in connection with the alleged offences punishable under Section 132(1)(c) of the Central Goods and Services Tax Act, 2017 (in short referred to herein as CGST Act, 2017) and Section 132(1)(c) of the Gujarat Goods and Services Tax Act, 2017 by exercising powers under Section 69 of the Gujarat Goods and Services Tax Act, 2017 (hereinafter referred to in short as the GGST Act, 2017 ). 3. The learned Additional Chief Metropolitan Magistrate, Ahmedabad by an order dated 24.02.2022 had granted custody for interrogation upto 15.00 hours of 03.03.2022. On 03.03.2022, the respondent No.3 moved an application for f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tured the final products of copper out of the material purchased under the Tax Invoice and then sold to its buyers under the Tax Invoice and passed on Input Tax Credit received by M/s. Madhav Copper Limited. It is further the case of the applicant that M/s. Madhav Copper Limited had filed regular returns for the business transactions and the company has not received any show cause notice either under Section 61 / 73 or 74 of Central Goods and CGST Act, 2017 or the GGST, 2017, except the show cause notice for the tax period 01.07.2017 to 03.10.2019 under Section 74/122 of the GGST Act, 2017 for Rs.20,86,67,524/-, to which M/s. Madhav Copper Limited has filed a reply and had also deposited Rs.7,71,22,360/- under protest. It the say of the applicant that the show-cause notices have not been adjudicated. It is further submitted that the business transaction of M/s. Madhav Copper Limited for the period 01.07.2017 to 03.10.2019 has been assessed and show-cause notice has been passed and therefore, for the same period, there cannot be a second show-cause notice unless the first notice is adjudicated. 7. Learned Senior Counsel Mr. N.D. Nanavaty appearing for the applicant submits that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel Mr. N.D. Nanavaty that Section 69 of the CGST Act gives powers to the authority to arrest/release the prisoner on bail and the said powers are subject to the same provisions as Officer Incharge of the Police Station. It is submitted that for the offences punishable with imprisonment for a term less than 7 years or extend upto 7 years with or without fine, the arrest of the accused can only be made when there is an exclusive necessity for arrest. Learned Senior Counsel Mr. N.D. Nanavaty has also relied on the following decisions :- (i) Satender Kumar Antil v. Central Bureau of Investigation and Another reported in 2022 SCC Online SC 825 and; (ii) Mohammed Zubair v. State of NCT of Delhi and Others reported in 2022 LiveLaw (SC) 629. 11. Learned Public Prosecutor Mr. Mitesh Amin alongwith learned Additional Public Prosecutor Mr. Pranav Trivedi appears for the respondent State. It is submitted that the present applicant is the Director of M/s. Madhav Copper Limited. The scam alleged is of fake purchases to the tune of Rs.762.66 Crores from 36 fictitious entities and thereby availing Input Tax Credit of Rs.137.28 Crores wrongly. It is further submitted that about 39 sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Gujarat in Criminal Miscellaneous Application No.6237 of 2020 and thereafter, the order was challenged before the Hon ble Apex Court by way of Special Leave to Appeal. 13. Learned Public Prosecutor Mr. Mitesh Amin submits that summons was issued to the Director of M/s. Madhav Copper Limited namely Divya Arvindbhai Monpara, Rohitbhai Bhikhabhai Chauhan and Pankajbhai Manjibhai Goyani and the co-onspirator Mukeshbhai Pravinbhai Chadotara. However none of them had co-operated with the investigating agency. It is further submitted that the anticipatory bail order of Mohammad Abbas Shabbirali Savjani was rejected by this Court on 13.06.2022 in Criminal Miscellaneous Application No.18055 of 2021. This Court had not exercised the discretion of granting anticipatory bail to the present applicant Nileshbhai Natubhai Patel vide common judgment dated 14.10.2021 in Criminal Miscellaneous Application No.17697 of 2011 and allied matters. It is further submitted that the bail application of Mohammed Abbas Shabbirali Savjani v. The State of Gujarat and Another in Special Leave to Appeal (Crl.) No.6085 of 2022 was even rejected by the Hon ble Apex Court and therefore, no relief has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation received from the respondent who had been arrested since his anticipatory bail application was not entertained by the Hon ble Apex Court. 17. On hearing learned Senior Counsel Mr. N.D. Nanavaty assisted by learned Advocate Mr. Chetan K. Pandya for the applicant and learned Public Prosecutor Mr. Mitesh Amin, assisted by learned Additional Public Prosecutor Mr. Pranav Trivedi and on going through the records of the case, it appears that the arrest memo was made on 23.02.2022, the complaint came to be filed on 22.04.2022. The applicant was taken for custodial interrogation during judicial custody. The facts of the complaint would be required to be proved by the Director General of GST Department who has filed the complaint. The learned Additional Chief Metropolitan Magistrate has ordered to register the complaint vide order below Exhibit 1. The learned Magistrate on 22.04.2022 ordered to register the complaint and issue summons to the accused under Section 132(1)(c) of GGST Act, 2017 and CGST Act, 2017 read with Section 120B of the Indian Penal Code making it returnable on 05.05.2022 under Section 204(a) of the Code of Criminal Procedure, 1973. The applicant is still in jail. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... makes provision for compounding of offences under the Act, even after the institution of prosecution, on payment by the person accused of the offence, such compounding amount in such manner as may be prescribed. The compounding shall be allowed only after making payment of tax, interest and penalty involved in such offences, on payment of compounding amount as may be determined by the commissioner, the criminal proceeding already initiated in respect of the said offence shall stand abated. 20. Here in this case, the allegations are of wrongfully availing Input Tax Credit to the tune of Rs.138.71 Crores. Almost 39 firms are alleged to have illegal dealings with M/s. Madhav Copper Limited. The authority has alleged that without any bills / invoices, the present applicant had shown the suppliers only on paper without any actual transfer of the goods and in conspiracy with the shell companies had defrauded the Government Exchequer to the tune of Rs.138.71 Crores, while on the contrary the applicant has stated that he was dealing in purchase of goods under tax invoices after verification of the registration on the web portal of GST Department and has indicated that M/s. Madhav Coppe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
