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TMI Blog2023 (9) TMI 1127X X X X Extracts X X X X X X X X Extracts X X X X ..... ) TMI 537 - SUPREME COURT ], a reference has been made to observe that the important factor while deciding the bail application certainly would be to take into consideration, the delay in concluding the trial. Section 138 of the Act makes provision for compounding of offences under the Act, even after the institution of prosecution, on payment by the person accused of the offence, such compounding amount in such manner as may be prescribed. The compounding shall be allowed only after making payment of tax, interest and penalty involved in such offences, on payment of compounding amount as may be determined by the commissioner, the criminal proceeding already initiated in respect of the said offence shall stand abated. This Court is of the opinion that, discretion is required to be exercised to enlarge the applicant on regular bail. This Court has considered the following facts while exercising discretion in favour of the applicant - without discussing the evidence in detail, this Court, prima facie, is of the opinion that, this is a fit case to exercise discretion and enlarge the applicant on regular bail. Hence, the present application is allowed and the applicant is ordered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 03.06.2023. Hence, present application. 5. Brief facts emerged from the record are as under: 5.1 That as per the case of prosecution, the applicant is the proprietor of Shree Sava Jewellers having GST Registration No. GSTIN : 24ABCPC0578L1ZT. The present applicant is the key mastermind behind systematically orchestrated scam defrauding the Government of its revenue worth crores of rupees. That the name of present applicant revealed during inquiry proceedings under Section 70 of GST Act-2017 conducted against (1) Bharatkumar H. Prajapati, the proprietor of Nadol Traders having GST Registration No. GSTIN : 24BJWPP3562J1ZK, (2) Ashwinbhai Gaurishankar Nayak, the proprietor of M/s. Mangalam Impex having GST Registration No. GSTIN : 24AFHPN4400K1ZM and (3) Ronak Dineshbhai Soni, the proprietor of M/s Shree Enterprise having GST Registration No. GSTIN : 24BGUPS2429C1Z9. That during the course of inquiry under the GST-Act, 2017, above-mentioned three persons have disclosed that as per the instruction given by the present applicant, they have obtained their GST Registration number. That as per the statement of above-mentioned three persons that the business, business activities a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leased on bail. 6.1 Learned Senior Advocate further submits that the Government of India, Ministry of Finance, Department of Revenue issued a Circular No. 171/03/2022-GST dated 06.07.2022 wherein it is clarified regarding the GST Act that if a registered person issued Tax Invoice to any other person without actually supplying the goods and services, in that case, that person is not liable to pay GST. The alleged offence under Section 138 of the GST Act, 2017 is a bailable offence qua the applicant as provided in Section 132 of the GST Act, as the amount involved for the GST amount is less than five crore input tax credit; however, the applicant has wrongly included the ITC of other three firms into applicant s ITS. The GST officers have recorded the confessional statement of the applicant forcibly during remand period, which is not admissible. The above-mentioned persons are running their own business at their respective registered business places and said three persons and their firms are not fictitious as alleged by the complainant. The three persons are not employees of the applicant or his firm Shree Seva Jewellers and therefore, the remuneration paid by the present applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... izure at the place of the applicant, the accounting material was found from the security cabin and therefore, it is crystal clear that the applicant has done the whole scam. He further submitted that as per Section 132 of the GST Act, 2017, if the person involved in the offence which is more that Rs.5 Crores, he is not entitled for the benefit of bail. He further states that present case is not based only on the documentary evidence as the applicant has issued bogus bills by way of GST numbers which have been availed by the three persons and therefore, in that direction, investigation is required. He further states that the present applicant has one criminal past as he remained bars in connection with the offence under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) and was declared defaulter. No doubt the said case is pending in this Court. He further states that if the applicant is released on bail, there are all possibilities to tamper / hamper with the evidence and witness and pressurize the persons related to this case. He further states that if he is released on bail, the possibilities cannot be denied that in future, he wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause (b) or fraudulently avails input tax credit without any invoice or bill; shall be punishable - (i) in cases where the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or the amount of refund wrongly taken exceeds five hundred lakh rupees, with imprisonment for a term which may extend to five years and with fine. 10.1 Section 132(1)(i) provides for punishment as that in cases where the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or the amount of refund wrongly taken exceeds five hundred lakh rupees, with imprisonment for a term which may extend to five years and with fine; and section 132(2) provides that, where any person convicted of an offence under this section is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to five years and with fine. 10.2 Section 138 of the Act makes provision for compounding of offences under the Act, even after the institution of prosecution, on payment by the person accused of the offence, such compounding amount in such manner as may be ..... 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