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TMI Blog2016 (5) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... o cancel and/or withdraw and/or rescind of the remand application dated 8th September, 2015. The petitioner has also sought for a mandatory direction upon the concerned respondent authorities to determine his dues on account of Service Tax from all his three-business entities separately before initiating any recovery proceedings or before taking any further coercive action against the petitioner. The petitioner has also prayed for a mandatory order directing the concerned respondent authorities to make final adjudication based on the Court's order dated 3rd November, 2015. It is quite evident that a criminal proceeding has been initiated against the petitioner, which is pending before the learned Additional Chief Judicial Magistrate at Alipore (South 24 Parganas). The records reveal that the petitioner was taken into custody and he subsequently applied for bail before this Court. An order was passed on 3rd November, 2015, whereby bail was granted primarily based on an undertaking given by the petitioner that he would pay the balance amount out of a total sum, which was more than Rupees three and half crores, within a fortnight after he was released on bail. Thus, the order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the respondents not to take any action on the basis of the said rejected VCES applications which have been rejected by the respondents themselves;" It is evident from the order under challenge that the writ petitioner had gone back from the undertaking to pay the entire balance amount within fifteen days from the date of release of the petitioner on bail. As payment was not made, the learned Judge found that the writ petition lacked bona fide and it was summarily dismissed. In this context, it is appropriate to set out the relevant portion of the order dated 3rd November, 2015 passed by the learned Single Judge in CRM 10294 of 2015 which is extracted hereunder: "This case arises out of the Finance Act, 1994 and the Central Excise Act, 1944. The allegation is that the petitioner has evaded the service tax for huge quantity. The petitioner submits that out of total sum of Rs. 3,56,52,323/-, he has only paid a sum of Rs. 1,74,71,382/- and also undertakes that the balance amount will be paid within a period of fortnight after he is released on bail. The petitioner further submits that only on the basis of memo of arrest, he has been arrested. There is no such formal FIR or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be paid by the declarant on or before 30th June, 2014, provided that where the declarant fails to pay the tax dues or part thereof on or before the said date, he shall pay the same on or before 31st December, 2014 along with interest. In the instant case, the appellant on behalf of three business entities filed separate applications under VCES for availing benefits of VCES declaring outstanding service tax to the tune of Rs. 1,35,79,114/-, Rs. 1,37,96,122/- and Rs. 82,77,087/- totalling Rs. 3,56,52,323/-, as evident from the writ petition. Thereafter, the applications were considered. Since it was found that the declaration was incorrect as proceeding was pending and was in violation of proviso to Section 106(1), the applications relating to of M/s. Park Indicom Private Ltd. and M/s. Park International were rejected by orders dated 7th May, 2014 and 16th May, 2014 respectively. So far as payment made with regard to M/s. Tele Solution Private Ltd. is concerned, the service tax authorities by letter dated 24th February, 2014 requested the appellant to submit written documents as indicted thereunder, which was replied to by the appellant by letter dated 12th March, 2014, where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings are initiated and concluded, nothing can be recovered from the appellant and, therefore, the remand notice is bad. Assuming there was a failure on the part of the declarant under Section 111(3) of the Act, show cause notice has to be issued under Sections 73 and 73(a) of the Act and thereafter, the authorities can proceed, which is yet to be done. According to him, recovery can be made under Section 87 of the Act. Even assuming the appellant had committed an offence under Section 89(1)(a) of the Act, the proper proceedings should have been initiated under the law. Since dues are much less and adjudication proceedings have not been initiated, the remand notice is bad and arrest is illegal as personal liberty of a person cannot be taken away save and except in accordance with law. In support of his submission reliance has been placed on the following judgments: a) ICICI Bank Limited -vs- Union of India & Anr.:2015-(SRI)-GJX-0118- Bom b) Lee Young Sang & Anr. -vs- Board of Trustees for the Port of Calcutta: 1999 CWN 230. Mr. S.B. Saraf, learned advocate appearing along with Mr. K.K. Maity, learned advocate for the respondents submits that the very conduct of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant failed to pay, the service tax authorities had directed for payment which he failed. Thereafter, the service tax authorities failing to recover the dues had filed the remand application. After the remand application was filed, the appellant had filed an application for grant of bail and on his undertaking to pay the entire balance amount bail was granted. The question is whether the appellant lacks bona fide. We find that bail granted to the appellant was on the basis of his undertaking that he shall make the entire balance amount within fifteen days from the date of release on bail. After bail was granted, he had filed writ petition on 23rd November, 2015 challenging the remand application. Evidently, the applicant had gone back from his undertaking on the basis of which the Court had passed the order for release on bail and therefore, he lacked bona fide. It is to be noted that the Supreme Court in the case of Prestige Lights Ltd. (supra) had held:- "An order passed by a competent Court - interim or final - has to be obeyed without any reservation. If such order is disobeyed or not complied with, the Court may refuse the party violating such order to hear him on me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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