9911796707
TMI Blog2021 (11) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... formation was provided regarding suppliers/recipients of M/s. Gajmukhi Bullion pertaining to jurisdiction of CGST and Cx. Mumbai South wherein one of the supplier is M/s. Gajmukhi Bullion having address at 13, 3rd floor, Plot No. 31/35, Rangwala Building, Zaveri Bazar, Mumbai. The applicant had passed ITC (Input Tax Credit) to the tune of Rs. 2.54 Crores to M/s. Gajmukhi Bullion. Information was received from Belgavi CGST & Cx. Commissionerate that M/s. Gajmukhi Bullion being receiver of ITC to the tune of Rs. 15.22 Crores approximately from Karnataka Jewellers. Search of premises was conducted on 25th March, 2021 at the registered address of the applicant and another place at Kalbadevi Mumbai where the applicant has shifted his office under the reason to believe that thorough investigation is required alongwith examination of documents to ascertain final quantum of GST liability. The documents were seized. The applicant was summoned under Section 70 of CGST Act vide summons dated 25th March, 2021. search was conducted applicant was directed to remain present on 26th March, 2021 to give evidence, provide documents. 3. The applicant had preferred an application for anticipatory bai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to the tune of Rs. 30 Crores approximately from M/s. Karnataka Jewellers, M/s. Balaji Enterprises, M/s. Kismat Enterprises has been made by the applicant. 4. Learned counsel for the applicant submitted that the applicant was arrested and released on bail vide order dated 12th November, 2020 by the High Court of Rajasthan, Jodhpur in relation to the same transaction. The applicant need not be again subjected to custodial interrogation. Ultimately the inquiry was conducted with the applicant by CGST Commissionerate, Jodhpur pertaining to firm of applicant including the firms at Mumbai and Rajasthan. Till the applicant was released, no communication was sent by CGST Jodhpur and it is only after his release on 12th November, 2020, the communication was sent to CGST Mumbai. The respondent No.2 has admitted that the applicant was arrested and released on bail in connection with the inquiry conducted by CGST Jodhpur. The applicant cannot be arrested again. It is further submitted that the contention of respondents that the applicant had availed ITC from M/s. Karnataka Jewellers, M/s. Kismat Enterprises and M/s. Balaji Enterprises is not supported by any material. The respondents are r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 132(b) of CGST Act. 6. It is submitted that companies reffed to by respondents are active and existent. Documents downloaded from portal of CGST demonstrate that creative overseas, Nevaki Enterprises and Kismat Enterprises are active. There is no material placed by respondent No.2 to indicate that parties were non existant and relevant time when transactions were execute. The applicant has appeared before respondent No.2 and produced all the documents. CGST Act is complete fiscal statute. In view of Section 134 of CGST Act sanction is mandatory for taking cognizance and for initiating prosecution against applicant. Assessment under Section 73 or 74 of the Act is required to be done to adjudicate tax liability. In absence of show cause notice to applicant for assessment of liability under Section 73 of CGST Act, there is no possibility of any charge-sheet being filed against applicant in near future and hence necessity of custodial interrogation does not arise sanction is necessary to take cognizance of offence under this Act. 7. It is submitted that the decisions in the case of Union of Indian V/s. Sapana Jain and Ors. delivered by apex Court was arising out of order passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of serious nature. As per the GSTR-2A of the applicant amount of Input Tax Credit availed by the applicant in respect of three firms with relating to the total GST of Rs. 29,70,50,865/- and taxable value was Rs. 990.17 Crores. He further submitted that the companies were fictitious. They were floated by the applicant to avail all the Input Tax Credit facility. The applicant has availed ITC availment to the tune of Rs. 30 Crores from M/s. Karnataka Jewellers, M/s. Balaji Enterprises and M/s. Kismat Enterprises. He further submitted that there is involvement of the applicant in committing the offence is writ large and apparent from the documents on record. He further submitted that respondents have powers to arrest the applicant. The submissions of learned counsel for the applicant that the sanction is required for the arrest of the applicant is devoid of merits. He referred to Sections 132, 69, 73 and Section 74 of the CGST Act. It is submitted that the sanction which is contemplated under the provisions of this Act is for prosecution and not for registration of the FIR. He relied upon the decision of the Division Bench of this Court delivered in Writ Petition (St.) No. 9335 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of documents to ascertain quantum of GST law, sales and purchase documents. The applicant was summoned to appear. The case of the respondents is that the applicant had fraudulently passed ITC to the tune of Rs. 2,54,61,612/- to M/s. Gajmukhi Bullion which is non-existent firm without actual receipt of goods and also availed the ITC. There is no reason to believe that the applicant is involved in availing ITC. There was no genuine transaction as claimed by the applicant. There was verification of supplier as per the GSTR-2A and it was revealed that M/s. Gajmukhi Bullion, Mumbai had availed ineligible ITC facilities from those companies. The investigation also revealed that 11 entities are non-existent. The total ITC availed by the suppliers was amount of Rs. 40.11 Crores approximately. The statements of the applicant were recorded on 21st June, 2021 & 12th July, 2021 under Section 70 of CGST Act in which he admitted that he took invoices without corresponding receipts of the goods from three firms namely M/s. Karnataka Enterprises, M/s. Kismat Enterprises and M/s. Balaji Enterprises and had also not made any payment to two suppliers i.e., M/s. Kismat Enterprises and M/s. Balaji ..... X X X X Extracts X X X X X X X X Extracts X X X X
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