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TMI Blog2024 (1) TMI 976X X X X Extracts X X X X X X X X Extracts X X X X ..... have been filed on behalf of the Directorate General of GST Intelligence (DGGI) seeking setting aside of the common order dated 21st December, 2022, passed by the learned Additional Sessions Judge (ASJ), Patiala House Courts, New Delhi, granting anticipatory bail to the accused Chaman Goel and Chirag Goel. 2. CRL. M.C. 6431/2023 has been filed on behalf of the accused Chaman Goel seeking setting aside of the order dated 29th August, 2023, passed by the learned Additional Sessions Judge (ASJ), Patiala House Courts, New Delhi, whereby the anticipatory bail granted to Chaman Goel has been cancelled on the ground of violation of condition of anticipatory bail. 3. Brief facts, as agitated by the DGGI, are as follows: 3.1 The officers of DRI, Gandhidham and DGGI, acting on intelligence, intercepted 21 containers carrying smoking mixtures from Mundra Port, Gujarat on 3rd October, 2022. The samples taken therefrom were sent to the Central Revenues Control Laboratory (CRCL), Kandla, wherein it was revealed that the aforesaid smoking mixture was a spurious product and not fit for human consumption. 3.2 Investigation was started and summons were issued to the exporter company, M/s Harsha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... country. Consequently, an application for cancellation of anticipatory bail was filed on behalf of the DGGI which was allowed by the learned ASJ vide order dated 29th August, 2023 and the anticipatory bail was cancelled. 3.11 This Court had granted interim protection to Chaman Goel vide order dated 6th September, 2023 passed in CRL.M.C. 6431/2023 filed by Chaman Goel. 4. Senior Standing Counsels appearing on behalf of the DGGI have made the following submissions: I. In view of the recent order dated 17th July, 2023, passed by the Supreme Court in SLP (Crl.) No. 4212-4213 of 2019 titled State of Gujarat v. Choodamani Parmeshwaran Iyer, provisions of Section 438 of the Code of Criminal Procedure, 1973 (CrPC) for grant of anticipatory bail are not applicable to cases involving offences under the CGST Act. II. The accused persons are involved in a serious economic offence relating to evasion of Goods and Services Tax (GST) to the tune of Rs. 218 crores. III. The smoking mixtures seized at Mundra port were tested by CRCL, Kandla, wherein it has been established that the smoking mixture is a spurious product and not fit for human consumption. IV. Analysis of the bank account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... man Goel have joined investigation and have been participating in the same. VII. Chaman Goel had attempted to travel to Dubai since his mother was unwell and he was under the belief that he had permission to travel abroad as he had been permitted by the Sessions Court in another case. 6. I have heard the counsels for the parties and perused the material on record. 7. At the outset, I shall deal with the submission advanced on behalf of the DGGI that anticipatory bail could not have been granted to Chirag Goel and Chaman Goel in view of the judgment of the Supreme Court in Choodamani Parmeshwaran Iyer (supra). 8. In Choodamani Parmeshwaran Iyer (supra), the Supreme Court has observed that if any person is summoned under Section 69 of the CGST Act for the purpose of recording his statement, provisions of Section 438 of the CrPC cannot be invoked. In the said case, the accused persons were not appearing before the authorities despite repeated summons being issued to them and had filed an application seeking anticipatory bail. It was in those circumstances that the Supreme Court made the aforesaid observations. 9. In the present case, it has rightly been contended on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... planation.-For the purposes of this section, the term "tax" shall include the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or refund wrongly taken under the provisions of this Act, the State Goods and Services Tax Act, the Integrated Goods and Services Tax Act or the Union Territory Goods and Services Tax Act and cess levied under the Goods and Services Tax (Compensation to States) Act." 14. On the basis of the material on record, it appears in the present case that Input Tax Credit has been availed by M/s Radiant Traders on procurement of cigarettes which have been shown to be used as raw material to manufacture 'smoking mixture'. It is hard to believe that tobacco from high value inputs i.e., cigarettes is used to manufacture a low value output i.e., 'smoking mixture'. It appears that this was done only to fraudulently obtain Input Tax Credit. 15. Subsequently, the Input Tax Credit was transferred from M/s Radiant Traders to M/s Harsha International by showing sale of smoking mixture. M/s Harsha International claims to have exported the aforesaid mixture and accordingly claimed GST refund in respect of the Input Tax Credit. It emerges that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the country without the permission of the court. Subsequently, Chaman Goel filed an application to travel abroad, which was rejected vide order dated 26th May, 2023 passed by the learned Additional Chief Metropolitan Magistrate (ACMM), Patiala House Courts, New Delhi. He even filed a revision against the said dismissal which was subsequently withdrawn by him on 3rd August, 2023. Yet, Chaman Goel attempted to leave the country on 9th August, 2023 when he was stopped at the airport on account of there being a Look Out Circular against him in respect of some other matter. In my view, this is a serious violation of the bail condition and an attempt to flee from justice. 22. In fact, in terms of the conditions of bail, Chaman Goel was also required to deposit his Passport with the Investigating Officer (IO) which he failed to do, thereby violating the bail conditions. 23. It was submitted on behalf of Chaman Goel that both the parents of Chaman Goel are cancer patients and the mother of Chaman Goel was undergoing treatment in Dubai and she had requested Chaman Goel to meet her there. This is at complete variance with the stand taken by Chaman Goel while filing the application for trav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy. ... 78. Power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. In Directorate of Enforcement v. Ashok Kumar Jain [Directorate of Enforcement v. Ashok Kumar Jain, (1998) 2 SCC 105 : 1998 SCC (Cri) 510] , it was held that in economic offences, the accused is not entitled to anticipatory bail. ... 83. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is (% by mass) = 7.8 Above tested parameter obtained from the sample u/r is not compiles to IS-1578:2018 for Tobacco and Tobacco product: Smoking Mixture - Specification. Query No. 02 & 03 could not be ascertained for want of testing facility. Sealed remnant sample returned herewith. (Emphasis supplied) Sadly, based on this inconclusive opinion of the chemist, the chemical examiner has given his opinion regarding the product not meeting the standard for Tobacco and Tobacco products smoking mixture. But the Department seems to have gone further ahead and assumed the position that Tobacco from cigarettes was never used and either there was no actual purchase of cigarettes or in the alternative the cigarettes were sold in the gray market. To support the conclusion so arrived at, the Department has claimed in para 8 and 34 and I quote again: The Input Tax Credit was shown to be received by the applicant on the basis of procurement of Cigarettes, which they have shown to be used as raw material for manufacture of their finished product i.e. Smoking Mixture, which is neither economically viable nor technically feasible and the test report also confirmed that the goods dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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