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TMI Blog2021 (9) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... not be any arrest as long as offences are compoundable, is an argument which cannot be accepted. Considering the investigation as per the case diary and the allegations of Department against the applicant, the supplier of M/s. Gajmukhi Buillion, M/s. Maple Fine Jewellery, M/s. Alentraa Trading Private Limited, Pramod Suraj Prasad Gupta (Eagle Impex), M/s. Center core Multi trading Private Limited, M/s. Dolphin Multi Trade Company, M/s. Creative Overseas and M/s. Nevaki Enterprises Private Limited are bogus firms are seems to be created to do paper transaction only. The request of the applicant as regards grant of anticipatory bail application has to be turned down - application dismissed. - ANTICIPATORY BAIL APPLICATION NO.775/2021 - - - Dated:- 20-8-2021 - HER HONOUR JUDGE JAYSHRI R. PULATE (C.R.NO.34) Appearance: Mr. Bhavesh Thakur, Advocate for the applicant. None for Respondent No.1 Mr. R.K. Pathak, S.P. P. for Commissioner of CGST/Respondent No.2. ORDER 1. Applicant has preferred the present application apprehending arrest in view of issuance of Summons dated 25.03.2021 in F. No. V/CGST/MS/AE/GR08/1125/20 21 by Respondent No.2 under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Kalbadevi, Mumbai. Under reason to believe that thorough investigation is required along with the examination of documents to ascertain final quantum of GST law, sales and purchase documents, miscellaneous files pertaining to inquiry alongwith back up of Tally in Pen Drive was withdrawn under panchnama dated 25.03.2021. The applicant was summoned u/s. 70 of the CGST Act 2017 to appear before the Superintendent, Mumbai, South to tender oral evidence and submit complete record i.e. copy of the financial record of the year 2017, 2018 to 2020, 2021, transaction details i.e. invoices regarding Karnataka Jewellers and other details pertaining to inquiry. The applicant failed to appear before the Superintendent, Mumbai, South and had not submitted any financial record as sought for. 4. It is further submitted that based on information, it was observed that the applicant has fraudulently passed ITC to the tune of ₹ 2,54,61,612 to M/s. Gajmukhi Bullion non existent firm without actual receipt of goods and also availed ITC of ₹ 15,22,02,368/ from non existent tax payer M/s. Karnataka Jewellers. The applicant had already been under investigation in complaint No. CGST/Div.D/A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce address on the portal of GST, Pali Division otherwise the firm had paid and submitted requisite GST by submitting GST forms to GST Pali Division. So, it cannot be said that it is non existent firm. It is submitted that as per the contention of Respondent No.2 Nevaki Enterprises Private Limited, Creative Overseas and Dolphin Multi Trade are fictitious Firms or Companies. In fact from the record, retrieved from the official website of Respondent No.2, aforesaid Companies are active and functioning. There is no contemporaneous record to suggest or prima facie indicate that transaction done with aforesaid firms are bogus or said firms are non existent when such transactions took place. The statement of Gautam Joshi is recorded by the Investigating Officer and therefore, nothing remains to interrogate with the applicant. 7. Learned Advocate for Respondent No.2, filed written submissions at Exh 5. The gist of the said submissions is that the applicant has in violation of provisions of GST Act, passed ITC in the sum of ₹ 2,54,61,612/ to non existent firm known as M/s. Gajmukhi Bullion without receipt of goods on the basis of bogus invoices. Similarly, applicant has illegal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1973. Thus, it is distinguishable in facts and is not applicable to the present set of facts. 10. Learned Advocate for Respondent No.2, further cited the Judgment in the matter of Nimmagadda Prasad V/s. Central Bureau of Investigation, Criminal Appeal No. 728 of 2013 dated 09.05.2013 (Hon'ble Supreme Court). The said Appeal was filed for regular bail u/s. 120 (B), r/w Section 420, 409, 477 (A) of the Indian Penal Code and Section 13 (2) r/w. 13 (1) (c) of the Prevention of Corruption Act, 1988. The facts of the said case are also distinguishable from the facts of present case and not applicable to the present set of facts. 11. Learned Advocate for Respondent No.2, further cited the Judgment in the matter of P.V. Ramana Reddy S/o. P. Shankar Reddy V/s. Union of India, Writ Petition No. 4764, 4769, 4892, 5074, 5130, 5329, 6952 and 7583 of 2019 dated 18.04.2019 (Hon'ble Supreme Court). The summons issued u/s. 70 of CGST Act were challenged in the said matter. After holding that even in case of pre arrest bail, writ petition cannot be said to be not maintainable, the question posed by the Hon'ble Telangana High Court, was whether in the facts and circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant by the Hon'ble High Court of Rajasthan would not dis entitle the Respondent No.2 from making any investigation in the present case. The statement of Aniket Mane employee of the applicant, since last one month, reveals that he was responsible for issuing invoices, he had never seen any Gold/Silver and precious stones in the office and applicant himself is engaged in the said activities. 12. Any offence under CGST Act 2017, is compoundable both before and after institution of prosecution, but the applicant had not offered to compound the offence, though compounding is permissible, even before the institution of prosecution. In third proviso of sub section (1) of Section 138 of CGST Act, Compounding can be allowed only on making payment of tax, interest and penalty involved in the said case. As per the allegations, the ITC availment to the tune of ₹ 30 Crores approximately, from M/s. Karnataka Jewellers, M/s. Balaji Enterprises, M/s. Kismat Enterprises has been made by the applicant. Therefore, argument of learned Advocate for applicant that as he has co operated the investigation and his statements have been recorded by the Department and therefore, there cann ..... X X X X Extracts X X X X X X X X Extracts X X X X
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