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TMI Blog2024 (7) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings under this Act shall be relevant. For the purpose of proving an offence, As per the said Section, a statement made and signed by a person on appearance in response to any summons issued under section 70 during the course of any inquiry or proceedings under this Act shall be relevant. From the material collected on record, reasons recorded are that during search, some documents were found showing that the applicant is running several firms on one PAN and without supplying any goods and though the said firms are not in existence, claimed ITC on account of trade/supply of goods. In the case of ARNESH KUMAR VERSUS STATE OF BIHAR ANR [ 2014 (7) TMI 1143 - SUPREME COURT ], the Honourable Apex Court while laying down some guidelines clarified that directions issued would not only be applicable to cases under 498-A of the Indian Penal Code or Section 4 of the Dowry Prohibition Act but also would cover cases where offence is punishable with imprisonment for a terms which may be less than seven years or which may extend to seven years whether with or without fine. In the present case, the necessary investigation is already carried out and chargesheet is already filed. The maximum p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but the same belongs to Vijay Akre and Vikesh Joshi. When the search was conducted by the investigating agency, 22.11.2023, at resident and office of the applicant, said Vijay Akre was at the house of the applicant who handed over the said laptop to the investigating agency. The applicant has not created any firm as alleged by the investigating agency. The applicant is operating only two firm i.e. M/s. Om Sai Enterprises and S.P. Enterprises. He submitted that alleging false allegations, summons was issued to the applicant and he was arrested. The applicant was arrested without complying notice under Section 41 of the Code of Criminal Procedure. The investigating agency has not ascertained allegation whether the applicant was operating and managing affairs of other firms. The allegations of contravention of provisions and availing excess ITC are baseless. The offences alleged are punishable with imprisonment less than seven years. The investigating agency has not followed guidelines issued by the Honourable Apex Court in the case of Satender Kumar Antil vs. CBI, reported in 2022 SCC OnLine SC 825. 6. In support of his contentions, learned Senior Counsel for the applicant placed re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by way of punishment, on being convicted for the said offences, may extend to five years or fine, if the amount of ITC is wrongly availed or the amount of refund wrongly taken exceeds Rs.500 lacs. In all other cases, punishment prescribed is imprisonment which may extend to three years and with fine. 9. In the light of the above provisions prescribing the punishment, learned counsel for the applicant would invoke the law laid down by the Honourable Apex Court in the cases of Satender Kumar Antil vs. CBI supra and State of Gujarat etc. vs. Choodamani Parmeshwaran Iyer and anr, reported in 2023 SCC OnLine SC 1043 and submitted that considering penalty to be imposed on conviction for the offence alleged to have been committed, the arrest of the applicant was unwarranted but the investigating agency has not considered the same. Admittedly, principles of paramount importance is, bail is rule and jail is exception . Now, investigation is completed and further incarceration of the applicant in jail is not required. 10. Insofar as submissions of learned counsel for the non-applicant are concerned, as regards applicability of Section 41A of the Code of Criminal Procedure, the same has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and reasons to believe. 11. This Court at Principal Seat in the case of Daulat Samirmal Mehta vs. Union of India, thr. the Secretary and ors, reported in 2021 SCC OnLine Bom 200 dealt with the issue and held that power to arrest is provided in Section 69. As per sub-section (1), where the Commissioner has reasons to believe that the person has committed any offence specified in clause (a) or clause (b) or clause (c) or clause (d) of sub-section (1) of Section 132, which is punishable under clause (i) or (ii) of sub-section (1) or sub-section (2) of the said section, he may by order authorize any officer of central tax to arrest such person. Chapter XIX deals with offences and penalties. Section 132 is part of Chapter XIX. It provides for punishment for committing certain offences. As per subsection (1), whoever commits any of the twelve offences mentioned therein shall be punished in the manner provided in clauses (i) to (iv) of sub-section (1). 12. In this case, we are concerned about Section 132 (1) (b) and 132 (1) (c) of the CGST Act, 2017. As per clause (c) of sub-section (1) of Section 132, the offences are availing ITC using invoice or bill without the supply of goods or serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the court and the court is of the opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. Thus, Section 136 will only come into play at the time where the trial commences and the said provision is important to highlight the fact that an admission made by person before the officials under the CGST Act, 2012 would be per se admissible in evidence unless it receives imprimatur of the Court. 14. From the material collected on record, reasons recorded are that during search, some documents were found showing that the applicant is running several firms on one PAN and without supplying any goods and though the said firms are not in existence, claimed ITC on account of trade/supply of goods. 15. In the case of Arnesh Kumar vs. State of Bihar, reported in (2014) 8 SCC 273 , the Honourable Apex Court while laying down some guidelines clarified that directions issued would not only be applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cipal Additional Director General could not have formed a reason to believe that the petitioner should be arrested. 18. In the light of the above observations and in the light of the decision of the Honourable Apex Court in the case of Ratnambar Kaushik vs. Union of India supra, in the present case, the necessary investigation is already carried out and chargesheet is already filed. The maximum punishment provided is five years. Further detention of the applicant in jail is not required. As such, the application deserves to be allowed, as per order below: ORDER (1) The criminal application is allowed. (2) The applicant shall be released on bail, in connection with Case No. DGGI/INT/INTL/505/2023-GR C-O/o ADGDGGI-ZU-Nagpur registered for offences punishable under Section 132 (1) (b), 132 (1) (c), 132 (1) (1) (i) read with 132 (5) of the CGST Act, 2017 by the non-applicant, on his executing a P.R. Bond in the sum of Rs. 2.00 lacs with one solvent surety of the like amount. (3) The applicant shall attend the office of the nonapplicant as and when required for the investigation purpose. (4) The applicant shall surrender his passport, if any, before the trial court within a week from th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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