TaxTMI 
TaxTMI 
2021 (1) TMI 796
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....f interfering with the liberty of the Petitioner in any manner; AND/OR." 2. Heard both the sides. 3. The Petitioners are directors of M/s. Ganraj Ispat Private Limited company and the company is registered under the provisions of the Central Goods and Services Tax Act, 2017 (GST Laws) (hereinafter referred as "the Act"). It has registered office at Supa, District Nagar, Maharashtra. One Tushar Munot, sole proprietor of M/s. Rutu Enterprises was arrested by the Respondents, officers of GST intelligence in the month of October 2020. In the month of November 2020, search of the premises of the company of Petitioners was conducted and some documents came to be seized. It is the contention of the Petitioners that as there was allegations of commission of offence under section 132 of the Act and it was informed to them that there was GST liabilities of Rs. 84,00,046/-(Rupees Eighty-Four Lakh and Forty-Six Only), the Petitioner deposited this amount with Respondent No. 2, but under protest. It is the contentions of the Petitioners that they want to contest the liability levied against them. 4. In the petitions, it is mentioned that the Petitioners want to challenge the prosecution as i....
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....ners and when even summons was not issued, they rushed to the Court to prevent the officers from exercising their powers. Thus, it is the contentions of the department that there is admission on the part of the Petitioners that fake transactions were shown for aforesaid purpose and inadmissible ITC was availed in respect of fake transactions. 6. The Respondents have denied that all the provisions of the Code of Criminal Procedure like Sections 154, 157 and 173 need to be applied for investigation and taking cognizance of the offence and it is contended that such contentions are out of misconception of law. 7. The learned counsel for Petitioners placed reliance on many interim orders made by the High Courts and some orders made by the Supreme Court. Copy of order made by the Honourable Apex Court in Special Leave to Appeal (Criminal) Nos.4322-4324 of 2019 arising out of many matters including the matter of Union of India v. Sapna Jain and others, is produced. The order dated 29th May, 2019 is as under: "Delay condoned. Issue notice returnable in four weeks. As different High Courts of the country have taken divergent views in the matter, we are of the view that the position ....
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....gainst the Petitioner, such interim relief needs to be granted to the present Petitioners also. 9. The aforesaid common order made by the Apex Court in Special Leave to Appeal (Criminal) Nos.4322-4324 of 2019 shows that the direction is given to place the matter before the Bench of Three Judges. But the fact remains that the Apex Court had refused to interfere in the order made by Telangana High Court in similar matter. 10. Some orders made by this Court at Principal Seat are also produced and some orders made by other High Courts are also produced by the learned counsel for Petitioners. He made some submissions on the basis of observations made by Madras High Court in the case reported as 2019 SCC OnLine Mad 31224, (Jayachandran Alloys (P) Ltd., Rep. By its Managing Director v. Superintendent of GST and Central Excise and others) and submitted that in that case there are observations, which support the contentions made by the present Petitioners. He submitted that the Madras High Court referred some observations made by the Apex Court in C.A. No. 8081/2018 in order dated 23-1-2019 and the observations are as under: "37. The aforesaid decision was carried in Appeal before the S....
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....e special Act need to be followed as it is special legislation and it is protected by Section 4(2) of the Code of Criminal Procedure. He placed reliance on observations made by the Gujarat High Court in R/Special Civil Application No. 13679 of 2019, (Vimal Yashwantgiri Goswami v. State of Gujarat) decided with other matters, to support his contentions. In these matters, the relevant provisions of the Code of Criminal Procedure are discussed by the High Courts and the provisions of the Act are considered as special enactment. The Gujarat High Court has referred the provisions of Sections 69, 132, 135, 61, 66, 73 and 74 also of the Act. The Gujarat high Court has referred the Finance Act, 1994, which was considered by the Madras High Court. Then the Gujarat High Court has referred the case reported as (2011) 3 SCC 581, (Radheshyam Kejriwal v. State of West Bengal and another), and the principles laid down by the Supreme Court are quoted. They are at paragraph 66 and they are as under: "66. The Supreme Court in the case of Radheshyam Kejriwal v. State of West Bengal and another [(2011) 3 SCC 581] has culled out the various principles in the aforesaid context as under: "38. The rat....
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....ecord, the company of he Petitioners voluntarily deposited the aforesaid amount and it was not deposited under protest. In Section 135 of the Act, it is provided that the presumption of culpable mental state is available against such persons. In Section 136 of the Act, it is made clear that the statement recorded under section 70 of the Act can be used in proceeding like prosecution as whey would be relevant. Thus, apparently, there is material to make out prima-facie case of fraud against the Petitioners. 15. In Section 67 of the Act, power of proper officer of making inspection of search and seizure is given. This provision shows that even before registration of crime, such power can be exercised. It was submitted that crime is registered under the Act with the officer, authority created under the Act. The provision of Section 67(10) of the Act runs as under: 67. Power of inspection, search and seizure: - (1) .... (10) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to search and seizure, shall, so far as may be, apply to search and seizure under this section subject to the modification that sub-section (5) of section 165 of the said Code shall....
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....rge of the police station in the Code of Criminal Procedure (underline added). The provision of Section 69 of the Act shows that subjective satisfaction of Commissioner is sufficient for effecting arrest of a person, who has committed the offence under section 132 of the Act. In Section 132 of the Act, different kinds of offences are mentioned. Section 132 (1) (b) and (c) is as under: "132. Punishment for certain offences.-(1) Whoever commits any of the following offences, namely:- (a)... (b) issues any invoice or bill without supply of goods or services or both in violation of the provisions of this Act, or the rules made thereunder leading to wrongful availment or utilisation of input tax credit or refund of tax; (c) avails input tax credit using such invoice or bill referred to in clause (b);" Thus, the allegations against the Petitioners and the material quoted above show that there is material for the offences punishable under sections 132 (1) (b) and (c) of the Act. The provisions of Section 132(4), 132(5) and 132(6) run as under: "132. Punishment for certain offences.- (1) ... (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of....
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....l prevail over the provisions of the Code of Criminal Procedure and it cannot be said that all the provisions of the Code of Criminal Procedure like Sections 154 and 173 of he Code of Criminal Procedure need to be followed for prosecution under the Act. This Court is limiting the scope of discussion only to the extent of the offences committed under the Act and the observations are made only from that angle. If offences under the Indian Penal Code also are committed then different and more serious view can be taken. It needs to be kept in mind that the allegations make out the case of forgery. 22. The aforesaid circumstances and position of law are sufficient for dismissal of all the proceedings. There are more circumstances for making the order of dismissal. In the present matter, admittedly, no summons was issued against the Petitioners though one director gave statement of the nature mentioned and the amount of Rs. 84,00,000/- came to be deposited by the company of the Petitioners. When there are aforesaid circumstances, before the in-charge Court some submissions were made for the Petitioners of the nature mentioned in the order and the following interim order was made in favo....