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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 ..... 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 of ICT has been availed by the accused firm alone as involvement of other firms also been averred. Apart from this, there is nothing on record to show that applicant has been a habitual offender. It has also not been contended that there is any likelihood of their absconding from the country, investigation in this case still at the initial stage and the evidence which is required to be collected during the course of investigation is primarily documentary in nature. The presence of accused can be secured by imposing stringent condition upon the applicant, so that, they may not flee from the investigation and cooperate in the same as and when directed by the department. A sum of Rs ₹ 4.5 crores already deposited out of total sum of Rs ₹ 85.4 crores. Moreover, the purpose of investigation and fixing the liability of the petitioner is to secure the payment of GST, and also to deprecate the false claim of ITC and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 payment of tax liability, whereas applicant No.4 Sh. Sudhir Awasthi is the CEO of the company and he was also responsible for the day today operation of the company including decision in tax matter. Applicant No.3 sh. Harmesh Mohan Sood was authorized to look after day today business activities of the company. It is contended by Ld. Counsel for CGST that applicant No.1 and 2 have already joined the investigation whereas, accused No.3 and 4 are yet to join the same. Investigation is stated to be at initial stage where the availment of inadmissible input tax credit of ₹ 85.4 crores has been ascertained. Bail is opposed by the department on the ground that offence alleged against the accused persons are seri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 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'ble supreme court in UOI v. Sapna Jain case is dated 29.05.2019, whereas in another judgement of Hon'ble Supreme court dated 06.08.2019 in C. Pradeep Hon'ble Supreme Court has granted pre-arrest bail to the accused on the deposit of 10% of the disputed liability and the said judgment till date has not been overruled. In this case, the total liability averred by the department is ₹ 85.4 crores and it is contended by Ld. Counsel for the applicant that out of the total liability, ₹ 4.5 crores already been deposited by the applicants under protest and the factum of deposit of the said amount is acknowledged by the officer of the department Sh. Sachin Johri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 violation of direction of Hon'ble High Court in Orion Security Solutions Anr. wP(Crl) 695/2020 where the amount directed to be deposited by the Hon'ble High Court was qua the admitted liability, whereas Hon'ble Supreme Court in C.Pradeep (Srupra) has directed the deposit of 10% in case of unadjudicated liability. Reliance is also placed on behalf of the petitioner on the verdict of the Supreme Court in Siddharam Sattlingappa Mhetre v. State of Maharashtra; (2011) 1 SCC 694 that in a case where the Court is of a considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability 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 of ICT has been availed by the accused firm alone as involvement of other firms also been averred. Apart from this, there is nothing on record to show that applicant has been a habitual offender. It has also not been contended that there is any likelihood of their absconding from the country, investigation in this case still at the initial stage and the evidence which is required to be collected during the course of investigation is primarily documentary in nature. The presence of accused can be secured by imposing stringent condition upon the applicant, so that, they may not flee from the investigation and co ..... 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