TaxTMI 
TaxTMI 
TaxTMI 
2024 (1) TMI 905
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....tigation, the name of the present applicant has come on surface and he has been arrested on 30.11.2023 and since then, he is in judicial custody. Learned Senior Counsel submitted that so far as the allegations leveled against the present applicant are concerned, the present applicant has indulged into the activities of intentional evasion of tax by falsely representing that they have imported betel nuts from abroad by fabricating various purchase invoices and subsequently, being used and presented as genuine and by doing this activity, they have obtained illicit financial gains. Learned Senior Counsel submitted that it is also alleged that the present applicant along with other accused persons orchestrated the scheme to defraud the Government through sale of imported betel nuts without remitting the required tax obligations, which they ought to have paid. Learned Senior Counsel submitted that it is alleged that the present applicant has created and generated false and fabricated bills for the imported betel nuts in the name of Mohit Enterprise and obtained false GST and opened bank account in the name of said firm and by creating false and fabricated record, same has been used as g....
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....se of initiating proceeding against the person for having committed an offence of tax evasion, as per Section 132 of the GST Act, with previous sanction of the Commissioner, prosecution can be launched against the guilty person. Learned advocate, therefore, put reliance upon Section 132 of the GST Act and submitted that more particularly, subclause (4), (5) and (6) clearly goes on to show that except the Commissioner of GST department, no other prosecuting agency has got any valuable right to initiate action against the offender of tax evasion. Learned Senior Counsel submitted that in fact, Section 138 of the GST Act clearly shows that the said provision provides for "compounding of offences" and as per the provision of Section 138 of the GST Act, those offences are compoundable one and, therefore for the sake of argument without admitting the guilt of the accused, it is to be believed that if any offence being committed by the present applicant under the GST Act, in that event, by repaying the amount of tax, those offences can be resolved by way of compromise (compounding the offence). As per the express provision of the GST Act, those accused persons can be released on the basis ....
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....ported salt and other miscellaneous articles from foreign country, whereupon they will have to pay 5% towards excise and custom duty and they have accordingly paid the said amount. Learned APP submitted that as per the papers prepared by the present applicant and other co-accused persons, they have imported salt and other miscellaneous articles from foreign country but in fact, as per the police papers, they have imported betel nuts from Dubai and the price of said so-called imported goods are too much low in the said country as the usages of the said are minimal in the said country. Not only that, those containers were cleared by the office of the custom house and all the containers were sent to local godown viz., 4fox Logistics Pvt. Ltd. and the said unit was run and functioned by other coaccused persons. Learned APP submitted that various seals fixed on the containers were removed and all luggage-laden in the containers have been replaced in the said firm/ godown and then after, once again seal was affixed and the said seal was procured at the behest of the main accused, Manishkumar Jain, who is stationed at Dubai and active involvement of the present applicant - accused in the ....
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....o dupe Government machinery and, therefore for the purpose of carry out investigation so far as forgery is concerned, the investigation is required to be entrusted to the Police machinery, therefore by no stretch of imagination, it can be said that there was misuse of power at the hands of the Police authority. Learned APP submitted that during the course of investigation, the concerned head of the investigating department has also made communication in writing to the head of all the department, whose direct and indirect involvement is found out so far as the investigation of tax evasion is concerned. The head of the Investigating Officer has written a letter to the Commissioner of CGST Department as well as Commissioner of Custom and Excise Department to carry out investigation by narrating entire sequence of events in a very crystallize manner and in pursuance thereto and in turn, they have received written communication specifically stating that the documents have been seized and sealed by the officer of the Police department and the investigation is still going on and in absence of those material, they could not be able to carry out investigation to the logical conclusion and, ....
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....pplication is filed before submission of the chargesheet and yet the investigation is going on as also other accused persons are yet to be arrested and, hence considering the above facts, the present application may not be entertained. 7. I have heard the learned advocates appearing on behalf of the respective parties and perused the papers of the investigation and considered the allegations levelled against the applicant and the role played by the applicant. I have also considered the reasoning given by the concerned court while rejecting the bail application and the affidavit filed by the IO opposing the said application. 8. It is the settled position of the law that, at this juncture detailed discussion of evidence and canvassing of the allegations contained in FIR as well as affidavit of the concerned Investigating Officer or the merits of the case as well, is not necessary and should be avoided. 9. It is found out from the available record that the present applicant - accused, in connivance with other accused persons, have hatched criminal conspiracy of evasion of tax and as a part of said conspiracy, they have prepared false and fabricated documents i.e. purchase invoices ....
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....and not under the provision of the GST Act and the allegations are with regard to forging of the documents, on the strength of it, evasion of tax has been done. Thus in view of the above facts, the said submission is misconceived. 11. The Court has also gone through the decisions relied upon by the learned advocate for the applicant. There cannot be any dispute with regard to the ratio laid down in the same. However, in the facts and circumstances of the case on hand and this being discretionary relief, which requires to be granted judiciously, the said decisions would be of no help to the present applicant at this juncture. 12. At this stage, I would like to put reliance upon the decision of the Hon'ble Apex Court in the case of Rajesh Ranjan Yadav @ Pappu Yadav Vs. CBI Through its Director, reported in (2007) 1 SCC 70, wherein, the Apex Court has laid down that, while considering an application for regular bail, the Courts shall have to take into consideration, the following aspects, (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (b) Reasonable apprehension of tampering with the witness or apprehensio....