2023 (3) TMI 1060 - DSC - GST

Seeking gran of bail - alleged evasion of tax by availing ITC on the basis of fake invoices - stand of the Department shows that the facts of the case of the present applicant are exactly the same as the facts of the case of co-accused persons, namely, Rajiv Chawla and Shipra Chawla, who have already been granted bail by Sh. Shailender Malik, Ld. ASJ on the basis of similar summons of even dates - HELD THAT - Judicial notice can be taken of the fact that when accused persons are in Jail, important factual assertions may not be made by the counsel in applications due to paucity of instructions. Moreso, when the factual assertion give way to relief on legal ground. It is only after co-accused, namely, Rajiv Chawla and Shipra Chawla were granted bail on a legal submission, relying on Section 6(2)(b) of CGST Act that the accused seems to have given the relevant information to his counsel and perhaps that is the reason why such a factual ground was never raised in the first bail application. In any event, besides the fact that the case of the accused is covered on all fours by the bail order of Rajiv Chawla and Shipra Chawla on ground of Section 6(2)(b) of CGST Act, it is also noticed that the stand of the Department in the present case further supports the claim of bail of the applicant/accused as the Department has itself claimed in the reply that the main accused and conspirators in the present case were Rajiv Chawla and Shipra Chawla and the present applicant was only an employee of theirs. The Department is also informed that the doctrine of law of the case requires that when a finding is given in a case, unless the same is disturbed by a higher court, the said finding on a question of law would continue to operate and bind all courts of equal jurisdiction i.e. all subsequent judges, exercising coordinate power - considering the said doctrine, this court cannot brush aside the view or interpretation given to Section 6(2)(b) of CGST by the Roster Judge, Sh. Shailender Malik, Ld. ASJ and take a different view in the same matter. The present accused/applicant Kamal Kumar is admitted to bail on furnishing of bail bonds/surety bonds in the sum of Rs.10,000/- with one surety of like amount to the satisfaction of the concerned Ld. MM/Duty MM - application disposed off.

Summary

Issues Involved:
The judgment involves the interpretation of Section 6(2)(b) of the CGST Act and the grant of bail to the accused based on multiple actions initiated by different agencies under the CGST.

Interpretation of Section 6(2)(b) of CGST Act:
The court considered the provisions of Section 6(2)(b) of the CGST Act in the context of multiple actions initiated by different agencies under the CGST. It was observed that no proceedings shall be initiated by the proper officer under the Act on the same subject matter if proceedings have already been initiated by another officer. The court emphasized that the intention of the law is to ensure assessment and levying of GST in accordance with the Act to prevent tax evasion. The court found that the actions initiated by different units against the accused were against the spirit of the CGST Act.

Dismissal of First Bail Application:
The first bail application of the accused was dismissed by the court as it was distinguished from the cases of other co-accused persons who were granted bail based on similar grounds. The court noted that the Department had not informed the court about the actions already taken against the accused by different units.

Grant of Bail to the Accused:
The court granted bail to the accused based on the fact that the actions initiated against him were similar to those against the co-accused who had already been granted bail. The Department's stand that the main accused were Rajiv Chawla and Shipra Chawla, and the present applicant was only an employee, further supported the grant of bail to the accused.

Doctrine of Law of the Case:
The court invoked the doctrine of the law of the case, stating that a finding on a question of law given in a case continues to bind all subsequent judges unless disturbed by a higher court. Therefore, the court upheld the interpretation of Section 6(2)(b) of the CGST Act by the Roster Judge and granted bail to the accused.

Conclusion:
The accused, Kamal Kumar, was admitted to bail on furnishing bail bonds/surety bonds to the satisfaction of the concerned Ld. MM/Duty MM. The application was disposed of, and the order was directed to be issued dasti.