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TMI Blog2020 (11) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... t M/s Milk Food Ltd has availed fake ITC of Rs. 54.86 crores from M/s Maya Implex, M/s Aditya Sales, M/s Shivv Muskaan Traders and M/s Shri Nidhivan Foods which were being operated by Sh. Ashish Agarwal. It is further alleged that M/s. Milk Food Ltd. Have also availed ITC of Rs. 30.54 crores from M/s. Devyaani Agro Industries (Prop. Sanjay Kumar Garg). Therefore, in total there is an allegation that the firm has availed total amount of Rs. 85.4 crores of inadmissible ITC from the government. Sh. Ashish Agarwal has been shown as mastermind and main beneficiary of several fake firms involved in generating and passing on fake ITC. It is further alleged that accused Ashish Agarwal and Sanjay Kumar Garg were arrested in connection of availing admissible ITC. In this manner, the firms which were being run by Sh. Ashish Agarwal and Sanjay Kumar Garg were operating fictitiously through non existing firms to pass on fake ITC by issuing fake invoices without actual supply of goods to various parties including M/s Milk Food Ltd. Applicant No.1 Sh. Naval Kumar is the Dy. General Manager, Applicant No.2 Sanjeev Kothiala is CFO, who was looking after day to day working of the company and payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his averment Ld. Counsel has also relied on the judgment of Hon'ble Supreme Court in C. Pradeeep Petitioners(s) v. The Commissioner of GST and central Excise, Selam andAnr. SLP (Crl.) Nos. 6834/2019. It is further averred that by way of the said judgment Hon'ble Supreme Court in an anticipatory bail application itself directed petitioner to deposit 10% of the alleged demand and similarly in the present case also the assessment and adjudication qua the ITC has not been carried out by the department and on the basis of tentative liability which has been set up by the department, applicants are ready to deposit GST in accordance with the same itself. On the point of deposit of Rs. 10% of the liability towards inadmissible ITC, Ld. Counsel for the respondent/department has submitted that the same is not permissible and applicant should deposit the entire amount of the liability and it is also contended that in the judgement of UOI v. Sapna Jain (Supra) pre-arrest bail has been discouraged by Hon'ble Supreme Court as well as Hon'ble High Court. In response to these arguments of the department, it is contended by Ld. Counsel for the applicants that the judgment of Hon& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t may not exceed Rs. 2,00,00,000/- (Rs. Two Crores) which the petitioner is willing to deposit within one week from today without prejudice to his rights and contentions in the assessment proceedings and the appeal to be filed thereafter, if required. Issue notice on condition that the petitioner shall deposit Rs. two crores to the credit of C No.IV/16/27/201HPU on the file of the Commissioner of GST and Central Excise, Salem, Tamil Nadu and produce receipt in that behalf in the Registry of this Court within ten days from today, failing which the special leave petition shall stand dismissed for non-prosecution without further reference to the court. Subject to the above, notice returnable within three weeks, Dasti, in addition, is permitted. For a period of one week, no coercive action be taken against the petitioner in connection with the alleged offence and the interim protection will continue upon production of receipt in the Registry about the deposit made with the Department within one week from today, until the disposal of this Special Leave Petition." I also do not find any fault in submission of Ld. Defence counsel that protection qua deposit of 10% amount is not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and there should be prevention of harassment, humiliation and unjustified detention of the accused; ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail." Similarly, in this case also, admittedly the total amount as liability of the of the applicants is yet to be adjudicated and assessed. Liability which has been raised by the department is the tentative where show cause notice is yet to be issued and adjudication is still due. Such proceeding will take considerable period of time. The firm involved in this case is stated to be a 50 years old firm and applicants are responsible for the running the firm being it's employees at senior positions. Lability is yet to be ascertained, only a tentative availment of ITC of GST has been averred, even as on today it is not sure that the entire amount ..... 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