TMI Blog2022 (10) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner would have all the authority to compound the offence on payment being made by the alleged accused. The details of all the fake companies have been recorded. 138 transactions have been found to be suspicious and against that the applicant claims the said to be actual transfer against the payment by RTGS. Both the sides would get an opportunity to prove their case. The applicant is ordered to be released on regular bail on executing a personal bond of Rs.1,00,000/- with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions imposed - application allowed. - R/CRIMINAL MISC.APPLICATION NO. 15878 of 2022 - - - Dated:- 4-10-2022 - HONOURABLE MS. JUSTICE GITA GOPI Ms. Megha Jani Advocate with MR DILIP T MAMTORA(10296) for MR MEET D PANSURIA(10170) for the Applicant(s) No. 1 MR PRANAV TRIVEDI APP for the Respondent(s) No. 1 ORDER 1. This application has been filed under section 439 of the Code of Criminal Procedure for regular bail in connection with Arrest Memo No.DCST/Enf/Div-10/STO-3/ Varun Bansal/2022-23/B.61, dated 28.07.2022 issued under section 69(1) read with section 132(1)(c) of the Gujarat Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedure contemplated in section 69 of the CGST Act, 2017. 3.2 Ms. Jani further submits that the allegation of availing wrongful input tax credit is without any basis and contrary to the evidence; thus, states that the documentary evidence for the purchase of goods including transportation details had been provided by the applicant, which itself suggests that there was a movement of goods and therefore section 132(1)(c) is not applicable in the present case. It is stated by Ms. Jani that the goods were purchased from the entities mentioned in the arrest memorandum against payments made through RTGS, which was admitted by the department in part-3 of the remand application dated 06.08.2022, which was not taken into consideration. 3.3 Ms. Jani stated that transactions with 10 firms, whose registrations were cancelled by the department, was based on some intelligence and system analysis and as shown in the arrest memo, the purchase shown by the company from 10 firms, were before the order of cancellation of registration and thus, she submits that section 132(1)(c) would not be applicable. 3.4 Ms. Jani submitted that 138 transactions, which is alleged by the department, are again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of registration and the reason stated for the cancellation were either the address of the firms were not found / not existed or the registration has been obtained by wilful misstatement or suppression of facts; and when detail checking of purchase transactions of the Company were made, 138 purchase transactions were found with 10 bogus firms. 4.2 In 30 invoices, the dispatch place from where the goods had been loaded and dispatched was different in E-way bill and lorry receipt; thus, the place from where the goods were loaded could not be determined. Mr. Pranav Trivedi, learned APP further stated that, in 34 invoices, when the movement of vehicles were checked based on radio frequency identification, no such movement of vehicles and no such reliable documents of movement were found, which creates doubts about the goods actually received. Mr. Trivedi further submitted that in 68 invoices, dispatch place of E-way bill and lorry receipt were different and in all fake purchase to the tune of Rs.59.55 crores from 10 fictitious entities could be easily found out; and thereby it was seen that the applicant had availed illegal Input Tax Credit to the tune of Rs.10.71 Crores wrong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porting, removing, depositing, keeping, concealing, supplying, or purchasing or in any other manner deals with, any goods which he knows or has reasons to believe are liable to confiscation under this Act or the rules made thereunder; (i) receives or is in any way concerned with the supply of, or in any other manner deals with any supply of services which he knows or has reasons to believe are in contravention of any provisions of this Act or the rules made thereunder; (j) tampers with or destroys any material evidence or documents; (k) fails to supply any information which he is required to supply under this Act or the rules made thereunder or (unless with a reasonable belief, the burden of proving which shall be upon him, that the information supplied by him is true) supplies false information; or (l) attempts to commit, or abets the commission of any of the offences mentioned in clauses (a) to (k) of this section, shall be punishable- (i) in cases where the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or the amount of refund wrongly taken exceeds five hundred lakh rupees, with imprisonment for a term which may extend to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial loss, the scope of consideration relating to bail has been taken into consideration in the background of the term of sentence being seven years if convicted and in that regard it has been held that in determining the grant or otherwise of bail, the seriousness of the charge and severity of the punishment should be taken into consideration. 23. Thus, from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of grave offence and in such circumstance while consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive years and with fine; and section 132(2) provides that, where any person convicted of an offence under this section is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to five years and with fine. 5.5 Section 138 of the Act 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. 5.6 Pre-charge evidence is required to be recorded. It is true that fraudulent ITC claim has created huge liability for the government, but equally it is necessary that the accused gets an opportunity to defend his case. The department during the course of judicial custody of the present applicant has made necessary investigation and collected d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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