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TMI Blog2024 (8) TMI 1444X X X X Extracts X X X X X X X X Extracts X X X X ..... ge and the severity of the punishment should be taken into consideration. Considering the entire facts and circumstances of the case and keeping in view the fact that in the instant matter trial has not started even yet and the complicity of the accused applicant is yet to be determined in trial and everything relevant to the matter is under control of the department itself and there is probably nothing on record to demonstrate that the applicant, if enlarged on bail, would in any way adversely affect the trial; further no final verdict of any Court / Authority for any criminal liability to the credit of the applicant has been brought to the notice of this Court and noticing that the alleged offence is punishable with the maximum period of imprisonment of five years, the applicant is in jail since 20.6.2024, without commenting upon the merits of the case, it is opined that the applicant has made out a case for bail. Let the applicant be released on bail subject to fulfilment of conditions imposed - the bail application of the accused-applicant is allowed. - Hon'ble Nalin Kumar Srivastava, J. For the Applicant : Manu Raj Singh,Nidhi Singh For the Opposite Party : Dhananjay Awa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se is based upon the statement of Rippan Kansal and no incriminating article or evidence was discovered by the department from the search and inspection of the premises and office of the present applicant. 6. It is further submitted that the prosecution story is highly suspicious in view of the fact that Rippan Kansal, who, as per the prosecution case admitted his guilt before the Officers of the department, was not impleaded as an accused by the department so far. The prosecution also relies upon the statement of one Sanjay Gupta in order to falsely implicate the present applicant in this case but the said Sanjay Gupta has also not been arrayed as an accused in this case so far. 7. Further, questioning the fairness of the CGST Department it has been pointed out that if the incriminating evidence retrieved from the possession of Rippan Kansal was kept with the department since January, 2024, at the time of raid, why any notice was not given to the present accused promptly by the Department which shows that all the alleged recovered incriminating materials are fabricated piece of evidence. 8. It is further argued that the department has already recorded the statement of the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of Section 136 of the CGST Act. The prosecution has based its story on the basis of material recovered from the possession of Rippan Kansal alleged to be a distributor of Kamdhenu Saria, which is not sustainable under law. As a matter of fact Rippan Kansal is a dealer of Kamdhenu Ltd. which is a business competitor of the applicant. 11. Learned counsel for the applicant further submitted that during the period 2018 - 2022 no notice was ever given to the present applicant by the department and the first notice was given only in the year 2022. It is also submitted that as a matter of fact Sanjay Gupta himself filed a Writ Petition before this Court as Writ Tax No. 669 of 2024 (M/s Jagdamba Steel Corporation vs. Senior Superintendent Director General of Goods and Service Tax Intelligence) against the department, which is still pending. It is also submitted that the GST returns filed by the accused applicant were accepted without any objection by the department every year continuously from the year 2018 to 2022 and he has been an honest and regular tax payee in respect of payment of G.S.T. Supplementing the submissions it is also urged that the grounds of arrest, which were int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h reference to the provisions of Section 136(b) of CGST Act, 2017 and no inference can be drawn on the basis of said statements. Relying upon the decisions promulgated in Deepanshu Srivastava case (supra), Commissioner of Central Excise MeerutI vs. Parmarth Iron, 2010 (26) ELT 514 (All), Basudev Garg vs. CCE, 2013 (294) ELT 353 (Alld), J K Cigarettes Limited vs. Collector of Central Excise, 2009 (242) ELT 189 (Del.) and Him Logistic Pvt. Ltd. vs. Principal Commissioner of Customs, 2016 (336) ELT 15 (Del.), it has been vehemently argued that unless the statement recorded under Section 70 of the CGST Act is testified during due process of cross examination it cannot be relied upon. Section 136 of the CGST Act will only come into play at the time when the trial commences and thus the admission made by a person before the revenue officials under the CGST Act would not be per se admissible in evidence unless it receives the approval of the Court. It is also submitted that the department itself has violated its own Circular dated 17.8.2022 regarding the arrest and bail in the matter of CGST Act, 2017. 16. It is also submitted that the case is triable by Magistrate and maximum punishment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s submitted that Rippan Kansal, who was the distributor of 'Kandhenu', 'Kandhenu NXT' brand TMT bars, had been creating business for M/s Shree Radhey Radhey Ispat Pvt. Ltd. during the period 2018-2022 and he was also making new dealers and was generating business for the firm of the accused and in this way he had been an integral part of the business of the firm M/s Shree Radhey Radhey Ispat Pvt. Ltd. belonging to the accused and as per their agreement the collection of payments from the dealers coming under Rippan Kansal was the responsibility of Rippan Kansal only. He was also getting his brokerage / commission @ Rs. 25 per ton and also maintaining the set of records in respect thereof and same were recovered from his residential premises during search made on 17.1.2024. The role of Rippan Kansal was also admitted by the present applicant in his statement dated 24/25.6.2024. The evidence resumed from the premises of Rippan Kansal was actually the subset of all supplies made by M/s Shree Radhey Radhey Ispat Pvt Ltd. during the aforesaid period i.e. January, 2019 to November, 2022. The statements made by Rippan Kansal and Sanjay Gupta were relevant which impose the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these grounds prayer has been made for rejection of the bail application. In support of his submissions, learned counsel appearing for the department has placed reliance upon the following decisions : (i) Collector of Customs, Madras and others vs. D. Bhoormull, 1983 (13) E.L.T. 1546. (ii) Mohanlal Jitamal Ji Porwal vs. State of Gujarat, 1987 (2() E.L.T. 483 (S.C.). (iii) Nimmagadda Prasad vs. Central Bureau of Investigation, (2013) 7 SCC 466. (iv) Ayodhya Prasad Mishra vs. State of U.P., MANU/UP/0909/2020. (v) Amit Beriwal vs. State of Odisha, 2020 (4) GSTL 451 (Ori.) (vi) State of Gujarat ETC vs. Choodamani Parmeshwaran Iyer another, 2023 LiveLaw (SC) 552. (vii) Y.S. Jagan Mohan Reddy vs. C.B.I., MANU/SC0487/2013. (viii) P. Chidambaram vs. Directorate of Enforcement, (2019) 9 SCC 24. (ix) K.I. Pavunny vs. Asstt. Collr. (HQ), (C.E.), MANU/SC/2303/1997. (x) Zaki Ishrati vs. Commissioner of Customs and Central Excise, Kanpur, MANU/UP/1614/2012. 20. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the case laws cited in the matter carefully. 21. A co-joint reading of the case laws relied upon by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tivities and may differ from one case to another. Therefore, it is not advisable on the part of the court to categorise all the offences into one group and deny bail on that basis. Suffice it to state that law, as laid down in the following judgments, will govern the field. 24. Also in P. Chidambaram case (supra), the Hon'ble Apex Court held as under (paragraph 23 of the said judgment) : 23. Thus, from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465] of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required. 26. In view of the above discussions and considering the entire facts and circumstances of the case and keeping in view the fact that in the instant matter trial has not started even yet and the complicity of the accused applicant is yet to be determined in trial and everything relevant to the matter is under control of the department itself and there is probably nothing on record to demonstrate that the applicant, if enlarged on bail, would in any way adversely affect the trial; further no final verdict of any Court / Authority for any criminal liability to the credit of the applicant has been brought to the notice of this Court and noticing that the alleged offence is punishable with the maximum period of imprisonment of five years, the applicant is in jail since 20.6.2024, without commenting upon the merits of the case, I am o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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