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TMI Blog2021 (6) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... and, therefore, the invoices issued by M/s. Veto Merchandise, Jaipur (GSTIN-08AA0FV2648B1Z1) to M/s. Swissline Intertrade Pvt. Ltd. F-438, Phase-1, Ind. Area, Bhiwadi (GSTIN- 08AAJCS6595A1Z3) were also fake / bogus. The Dy. Commissioner, State Tax had also informed that no business activities were done at the business premises of M/s. Veto Merchandise and that the registration of the said firm had been cancelled and complete ITC had been blocked. Returns and other relevant details of M/s. Swissline Intertrade Pvt. Ltd. F-438, Phase-1, Ind. Area, Bhiwadi (GSTIN- 08AAJCS6595A1Z3) were checked on AIO and it was found that earlier M/s. Swissline Intertrade Pvt. Ltd. F-438, Phase-1, Ind. Area, Bhiwadi (GSTIN-08AAJCS6595A1Z3) was registered under Central Excise and later, it was registered under the GST regime. Since July, 2017 (after enactment of GST), M/s. Swissline had filed GSTR 3B returns upto February, 2020 and the total taxable supplies shown in GSTR 3B returns were Rs. 300.09 crores. M/s. Swissline Intertrade Pvt. Ltd. had paid tax amounting Rs. 48.87 crores through ITC and Rs. 2.20 lakhs only through cash. It had also paid cash Rs. 4.71 lakhs under RCM. The cash : ITC ratio of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat where an offence committed under this Act is a Company, every person who, at the time of commission of the offence, was in charge of and was responsible for the conduct of the business of the company, as well as the Company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly, but in the instant case, Department has neither given any prosecution sanction nor initiated any action for the alleged offence against the Company, which is a taxable person in view of Section 122 of the Act of 2017. He further submits that for the alleged offence a taxable person is liable to pay a penalty of an amount equivalent to the tax evaded in terms of Section 122 (1) of the Act of 2017 and in view of sub-section (3) of Section 122 of the Act of 2017, who aids or abets the offence shall be liable to a penalty which may extend to twenty five thousand rupees only. The petitioners who are the employees of the Company have been falsely implicated in this matter. He further submits that as per Section 138 of the Act of 2017, the alleged offence is compoundable by the Commissioner. He further submits that although the petitioners were arrest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Yadav and Bimal Kumar Jain, who are Directors of the Company, but they did not appear and the petitioners who cooperated and appeared before the respondents, have been arrested and made victim of the circumstances. He further submits that Bimal Kumar Jain was arrested by Enforcement Directorate in Money Laundering case where interim bail / parole was granted to him. If the Directors are not coming for recording their statement, then action ought to have been taken against them. He further submits that as per the case of the prosecution, the petitioners Ramesh Kumar Jain and Sanjeev Jain are actively involved in availing wrong ITC, which goes to show that the petitioners are not the Directors of the company and they are only the employees of the company. He further submits that after completion of investigation, charge sheet has already been filed. Now the petitioners are not required for any investigation or interrogation purposes. Petitioner Ramesh Jain is about 63 years of age who is suffering from acute Sleep apnea and a Certificate in this regard has been issued by the Doctor of Dispensary, Central Jail, Jaipur. The petitioners have no criminal antecedents to their discredit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Rs. 48.87 crores through ITC and Rs. 2.20 lakhs only through cash. It had also paid cash Rs. 4.71 lakhs under RCM. The cash : ITC ratio of M/s. Swissline Intertrade Pvt. Ltd. is 0.04 : 99.96. The petitioners are not the employees but they are shareholder Directors of the company. Petitioner Ramesh Jain is having 27% sharing in M/s. Swissline Intertrade Pvt. Ltd. Similarly, petitioner Sanjeev Jain is the Director of M/s. Mohit Metals Pvt. Ltd. and has 65% share in the said company. So far as Section 138 of the Act of 2017 relating to compounding of offences is concerned, learned counsel for the respondent submits that compounding can be allowed only after making payment of tax, interest and penalty involved therein. The petitioner Ramesh Jain had availed of wrongful input tax credit to the tune of Rs. 47,91,05,784/- and passed on fake / bogus ITC to the tune of Rs. 48,40,60,293/- without any purchase or sale of goods. Similarly, petitioner Sanjeev Jain had availed of wrongful input tax credit to the tune of Rs. 13,35,44,893/- and passed on fake / bogus ITC amounting to Rs. 12,64,19,263/- without any movement of goods. He further submits that the petitioners have been charge sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her submits that now-a-days, white collar crimes are increasing rapidly in the country. He further submits that the alleged offence committed by the petitioners is an economic offence. In support of his submissions, he has placed reliance on the following judgments: i) Serious Fraud Investigation Office Versus Nittin Johari and Another reported in (2019) 9 SCC 165 ii) Nimmagadda Prasad Versus Central Bureau of Investigation reported in (2013) 3 SCC 466. iii) Bharat Raj Punj & Anr. Versus Commissioner of Central Goods and Service Tax Department and Others (order dated 12.3.2019 passed by the Coordinate Bench of this Court in S.B. Cr. Writ Petition No. 76/2019) iv) Sumit Dutta Versus Union of India (order dated 20.4.2021 passed by the Coordinate Bench of this Court in S.B. Cr. Misc. Bail Application No. 5371/2021) Heard. Considered. In the case of Arnesh Kumar (supra), Hon'ble Apex Court observed as under: "a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on its satisfaction that such person had committed the off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... izen and was in custody for last about 5 months; all the evidence being documentary in nature and no apprehension shown by the prosecution about the accused petitioner of tampering with the evidence/witnesses and co- accused having already been released on bail, a Coordinate Bench of this Court granted bail to the petitioner therein. On the other hand, in the case of Serious Fraud Investigation Office (supra), the judgment passed by the Hon'ble Apex Court in the case of Y.S. Jagan Mohan Reddy Versus Central Bureau of Investigation reported in (2013) 7 SCC 439 was referred, where Hon'ble Apex Court observed thus: "34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. 35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which convicti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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