TaxTMI 
TaxTMI 
2014 (2) TMI 530
X X X X Extracts X X X X
X X X X Extracts X X X X
.... for grant of temporary bail. 4. As per the bail application and submission of counsel for the applicant, this is the first bail application filed on behalf of the applicant for grant of regular bail. No other application of this nature is pending before this Court or before the Court below. The application is duly supported by the affidavit of Sujit Surendran Nair, younger brother of the applicant. His bail application has been dismissed by the Sessions Judge, Durg vide order dated 18-10-2013 passed in Bail Application No.1410/2013. 5. As per the arrest memo, the applicant has collected service tax amounting to Rs.2.17 crores for the State and has not deposited the same to the State. 6. Initially, bail application was filed by Mr. Kishore Bhaduri, Additional Advocate General/Public Prosecutor in which non-applicant No.2 - State has not been impleaded as party. Competency of Mr. Kishore Bhaduri, Additional Advocate General/Public Prosecutor to represent the applicant was objected by the Standing Counsel for Central Excise and Customs - Mr. Maneesh Sharma, Advocate. During the course of arguments, on 31-10-2013, Mr. Kishore Bhaduri, Additional Advocate General/Public Prosec....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... offence specified in clauses (a), (b) or (c) where the amount exceeds fifty lakh rupees, with imprisonment for a term which may extend to three years: Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court, such imprisonment shall not be for a term of less than six months; (ii) in the case of the offence specified in clause (d), where the amount exceeds fifty lakh rupees with imprisonment for a term which may extend to seven years; Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court, such imprisonment shall not be for a term of less than six months; (iii) in the case of any other offences, with imprisonment for a term, which may extend to one year. (2) If any person is convicted of an offence punishable under - (a) clause (i) or clause (iii), then, he shall be punished for the second and for every subsequent offence with imprisonment for a term which may extend to three years; (b) clause (ii), then, he shall be punished for the second and for every subsequent offence with imprisonment for a term which may extend to seven yea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....by the Constitution Bench of the Supreme Court in the matter of A.R. Antulay v. Ramdas Sriniwas Nayak AIR 1984 SC 718 and the Supreme Court has held that "in the absence of a specific provision made in the statute indicating that offences will have to be investigated, inquired into, tried and otherwise dealt with according to that statute, the same will have to be investigated, inquired into, tried and otherwise dealt with according to the Criminal Procedure Code. In other words, Criminal Procedure Code is the parent statute which provides for investigation, inquiring into and trial of cases by criminal Courts of various designations". 11. In absence of any specific provision in the Finance Act, 1994, only criminal courts are competent to try the offence punishable under Section 89 of the Finance Act, 1994 in accordance with the parent Act i.e. the Code of Criminal Procedure, 1973 and not by the Commissioner, Central Excise or officers of the Central Excise Department. 12.Administration of criminal justice has been entrusted to the Office of the Advocate General by the State. The State has appointed Mr. Kishore Bhaduri as Additional Advocate General/Public Prosecutor. 13.U....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ase of any default, the conditional bail automatically be cancelled and the applicant will abide all the conditions imposed upon him. 18. On the other hand, learned Standing Counsel for Central Excise and Customs Mr. Maneesh Sharma opposed the bail and submitted that the applicant has evaded the liability to pay service tax which he has recovered and about more than Rs.4 crores of service tax is due against the applicant which he is evading. This is not the case in which the applicant will recover his service tax and thereafter, he will deposit, but even as per the statement, the applicant has recovered Rs.2.17 crores as service tax for the State and he is keeping the same with him. The applicant is only a trustee of public money and he is under obligation to discharge the entrustment in accordance with law i.e. to deposit service tax immediately, which he has recovered from the parties. Withholding of service tax amounts to criminal misappropriation of State money. 19. Learned State counsel also opposed the bail. 20. As per the arrest memo, service tax of Rs.2.17 crores was due against the applicant. As per the documents submitted on behalf of the applicant, the applicant....