2019-TIOL-2717-HC-MUM-IT

Bajaj Allianz Life Insurance Company Ltd Vs DCIT

Whether reassessment based on mere change of opinion is not permissible, if there is a failure on the part of assessee to truly and fully disclose all material facts - YES: HC

- Assessee's petition allowed: BOMBAY HIGH COURT

VM Salgaoncar And Brother Pvt Ltd Vs CIT

Whether deductions u/s 80HHC is to be made on the basis of net receipts and not gross receipts - YES: HC

- Assessee's appeal allowed: BOMBAY HIGH COURT

Vipin Mehta Vs CIT

Whether income from single venture and outright purchase in respect of real estate can be considered as business income, if agreement is only in respect of development rights and ownership did not pass on - NO: HC

- Assessee's appeal dismissed: BOMBAY HIGH COURT

Kandan And Kannan Medical Agency Vs ITO

Whether belated return can be ignored and best judgment assessment can be passed without offering any show cause notices - NO: HC

- Assessee's petition allowed: MADRAS HIGH COURT

PR CIT Vs Balaji Electrical Insulators Pvt Ltd

Whether when quantum of tax offered on income from profit on sale of land (stock-in-trade), is more than the income as specified in the development agreement, then provision of Sec 2(47) relating to capital asset would not apply - YES: HC

- Revenue's appeal dismissed: GUJARAT HIGH COURT

PR CIT Vs Backbone Projects Ltd

Whether there will be any tax liability on the income of joint venture if the same income has been offered to tax by the members of the joint venture - NO: HC

Whether once taxes had been paid by the members of the AOP, then the AOP cannot be saddled with the liability to pay tax in respect of the same amount - YES: HC

- Revenue's appeal dismissed: GUJARAT HIGH COURT

State Of Uttar Pradesh Vs Kay Pan Fragrance Pvt Ltd

GST - The first set of appeals is filed by the State of U.P., questioning the interim order passed by the High Court directing the State to release the seized goods, subject to deposit of security other than cash or bank guarantee or in the alternative, indemnity bond equal to the value of tax and penalty to the satisfaction of the Assessing Authority - It has come on record that similar orders came to be passed in several other writ petitions by the High Court, details whereof have been mentioned in the affidavit filed by the State in this Court - It was brought to the notice of the Bench that the High Court, after passing the said interim order would then dispose of the main Writ Petition as having become infructuous, consequent to release of goods by the appropriate authority in terms of the interim order of the High Court - Accordingly, Court had to pass an order on 16.9.2019 advising the department to invite the attention of High Court regarding the pending special leave petition before this Court - Pursuant thereto, it is informed that the High Court is disposing of Writ Petitions by referring to Section 67 (8) of the Central Goods and Services Act, 2017 and Rule 141 of the relevant Rules.

Held: There is force in the submission canvassed by the State that a complete mechanism is predicated in the Act and the Rules for release and disposal of the seized goods and for which reason, the High Court ought to have been loathe to entertain the Writ Petitions questioning the seizure of goods and to issue directions for its release - For the sake of consistency, Bench has no hesitation in observing that the High Court in all such cases ought to have relegated the assessees before the appropriate Authority for complying with the procedure prescribed in Section 67 of the Act read with Rules as applicable for release (including provisional release) of seized goods - There is no reason why any other indulgence need be shown to the assessees, who happen to be the owners of the seized goods - They must take recourse to the mechanism already provided for in the Act and the Rules for release, on a provisional basis, upon execution of a bond and furnishing of a security, in such manner and of such quantum (even upto the total value of goods involved), respectively, as may be prescribed or on payment of applicable taxes, interest and penalty payable, as the case may be, as predicated in Section 67(6) of the Act - In the interim orders passed by the High Court which are subject matter of assail before this Court, the High Court has erroneously extricated the assessees concerned from paying the applicable tax amount in cash, which is contrary to the said provision: Supreme Court

GST - In the opinion of the Bench, therefore, the orders passed by the High Court which are contrary to the stated provisions shall not be given effect to by the authorities - Instead, the authorities shall process the claims of the concerned assessee afresh as per the express stipulations in Section 67 of the Act read with the relevant rules in that regard - In terms of this order, the competent authority shall call upon every assessee to complete the formality strictly as per the requirements of the stated provisions disregarding the order passed by the High Court in his case, if the same deviates from the statutory compliances - That be done within four weeks without any exception: Supreme Court

GST - Release of seized goods - Bench reiterates that any order passed by the High Court which is contrary to the stated provisions need not be given effect to in respect of all the cases referred in the affidavit by the State Government before this Court and fresh cases which may have been filed or likely to be filed before the High Court in connection with the subject matter of these appeals, by all concerned and are deemed to have been set aside/modified in terms of this order - all the Writ Petitions pending before the High Court, list whereof has been furnished in the affidavit are deemed to have been disposed of accordingly - We have passed this common order to cover all cases of seizure during the relevant period, to obviate inconsistency in application of Law and also to do away with multiple appeals required to be filed by the State/ assessee to assail the unstatable orders/directions passed by the High Court in subject writ petition(s) referred to in the affidavit filed by the State before this Court - the appeals are disposed of: Supreme Court

- Appeals disposed of: SUPREME COURT OF INDIA

2019-TIOL-2741-HC-KERALA-GST

Polycab India Ltd Vs State Of Kerala

GST - Goods belonging to the petitioner were detained by the 3rd respondent on the ground that there was a possibility of evasion of payment of IGST in Kerala and further, that the consignee of the goods in Kerala was indicated as an unregistered dealer at the time of detention of the goods and a tax and penal liability determined by the said respondent - It is the case of the petitioner that the transaction in question involved a sale from the vendor in Gujarat, to the purchaser in Uttarakhand, and pursuant to the instructions received from the purchaser, the goods were consigned to a destination in Trivandrum; that the tax invoice clearly indicated the said position; that the E-way bill also indicated the same details - Petitioner submits that the reasons given by the respondent cannot justify detention of the goods u/s 129; that the Eway bill clearly covered the transaction from Gujarat to Trivandrum, and the invoice that covered the transaction was a 'Bill to/ship to' model, which was permissible under the CGST/SGST Act and Rules.

Held: There was no justification for detention of the goods in terms of Section 129 of the CGST/SGST Act - This is more so because the reasons stated in the detention order are wholly irrelevant for the purposes of S.129 of the Act - Bench directs the third respondent to release the goods and the vehicle to the petitioner - 3 rd respondent may, thereafter, forward the files to the adjudicating authority for an adjudication u/s 130 of the Act - Petition is disposed of: High Court [para 3]

- Petition disposed of: KERALA HIGH COURT

2019-TIOL-2740-HC-ALL-GST

Ingersoll-Rand Technologies And Services Pvt Ltd Vs UoI

GST - Petitioner has sought intervention to allow the writ petitioner to file a revised declaration in FORM G.S.T. T.R.A.N-1 or manually accept the same to enable the writ petitioner - company to avail the credit pertaining to SAD (Special Additional Duty) amounting to Rs. 22,51,380/-; which, according to the writ petitioner was not claimed by it, inadvertently.

Held: A conjoint reading of the above two rules 117 and 120A clearly reveals that every registered person who has submitted a declaration electronically in FORM G.S.T. T.R.A.N-1 within the period specified in Rule 117 or Rule 118 or Rule 119 or Rule 120 is allowed to revise such declaration once and submit the revised declaration in FORM G.S.T. T.R.A.N-1 electronically on the common portal, "within the period specified in the said rules or such further period as may be extended by the Commissioner in this behalf" - This further period - as may be extended by the Commissioner - which is provided under Rule 120-A, therefore, cannot go beyond the time-frame provided under Rule 117 of the Uttar Pradesh Goods & Services Tax Rules, 2017 - The period of extension has been statutorily circumscribed at 90 days and that too is possible only on the recommendation of the Council - If we are to assume that the Commissioner while exercising his powers under Rule 120-A of the Uttar Pradesh Goods & Services Tax Rules, 2017 can extend the time period for the purpose of filing of a revised declaration by a registered person in FORM G.S.T. T.R.A.N-1 for an unlimited or an indefinite period, it would simply mean that any registered person can avail the benefit of filing a revised declaration in FORM G.S.T. T.R.A.N-1 for an unlimited or indefinite period of time after submitting a declaration electronically in FORM G.S.T. T.R.A.N-1 under Rule 117 of the Uttar Pradesh Goods & Services Tax Rules, 2017 - That surely could not have been the purpose and intention of the legislature - In such circumstances as stated above, a writ in the nature of mandamus, as prayed for, cannot be granted by this Court - However, it is open to the Council to take a decision in the matter in the light of the writ petitioner's letter dated 28th March, 2019 - Petition disposed of: High Court

- Petition disposed of: ALLAHABAD HIGH COURT

Tulsyan Nec Ltd Vs ACCT

Whether merely calling for factual as well as numerical details by the Officer and production of those details by assessee, advances the process of assessment itself - NO: HC

Whether pre-assessment proposals issued prior to completion of assessment, puts the subject issue for rebuttal to the assessee - NO: HC

- Assessee's petition allowed: MADRAS HIGH COURT

SERVICE TAX

Infosys Ltd Vs CC, CE & ST

ST - Refund - Rule 5 of CCR - Notification 5/2006-CE(NT) - Relevant date for filing refund claims should be taken to be end of the quarter in which FIRC is received as held by the Larger Bench in the case of Span Infotech [2018-TIOL-516-CESTAT-BANG-LB]: CESTAT [para 4.1]

ST - Refund is also denied on the ground that there is no nexus between the input services on which credit was availed and the output service exported; that the appellant has not produced concrete evidence in support of utilisation of input services in the export of service as required under rule 5 read with rule 2(l) of CCR, 2004; that whether the input services were totally used for export of services or were partially used etc.

Held: CBEC Circular 120/01/2010  dated 19.01.2010 has clarified on the subject  matter in paragraph 3.2.1 - appellant has also submitted that the Commissioner(A) has also not given any finding on the various case laws cited by them - such an action by the lower authorities is a clear violation of the principles of natural justice - it is the bounden duty of the authorities to examine the claims of the appellants - for this reason, the matter needs to be remanded to the lower authorities for re-examination in the light of the submissions made, the Chartered Accountants certificates and judicial pronouncements - lower authority to decide the matter within twelve weeks: CESTAT [para 4.2, 5]

- Matter remanded:BANGALORE CESTAT

2019-TIOL-3452-CESTAT-MUM

Bajaj Allianz Life Insurance Company Ltd Vs CCE & ST

ST - The dispute pertains to non-inclusion of 'policy administration charge' collected from recipients of 'life insurance' service in assessable value for discharging liability under FA, 1994 - In confirming the demand, Rule 5(1) of Service Tax (Determination of Value) Rules, 2006 has been relied upon - The impugned order covering the period from 2007 to 2008, consequent upon SCN dated 16th April 2013, by invoking the extended period, confirmed the demand and justified the inapplicability of bar of limitation - Palpably, the period for which recovery has been confirmed would be within the sanction of law only if extended period was so invoked - In the light of transactions of assessee having been subject to scrutiny and proceedings initiated on the earlier occasion, the notice was precluded from seeking recovery beyond the normal period prescribed in section 73 of FA, 1994 - As the period covered in present SCN is 2007-08 and the notice was issued in 2013, the demand fails to overcome the bar of limitation as held by Supreme Court in Nizam Sugar Factory - 2006-TIOL-56-SC-CX - Tribunal also cannot overlook the impropriety on the part of adjudicating authority in making observation on presumption of deficiency in earlier proceedings in an attempt to justify the invoking of extended period - That, appropriately, falls within the competence of designated Committee of Chief Commissioners and not of a successor in office - Such erroneous and improper presumption cannot also overcome the bar of limitation in section 73 of FA, 1994 - The impugned order is set aside: CESTAT

- Appeal allowed: MUMBAI CESTAT

CENTRAL EXCISE

2019-TIOL-2720-HC-AHM-CX

CCGST & CE Vs Devyani Processors Pvt Ltd

CX - On a plain reading of the provisions of section 11AC of the CE Act, it is evident that the condition precedent for invoking the said provision is that there should be fraud, collusion or any mis-statement or suppression of facts or contravention of any of the provisions of the Act or the rules made thereunder with intent to evade payment of duty - adjudicating authority has recorded a categorical finding of fact that there was no fraud, collusion or any mis-statement or suppression of facts on the part of the respondent with intent to evade payment of central excise duty - In the light of the concurrent findings of fact recorded by the adjudicating authority, the condition precedent for invoking the provisions of section 11AC of the Act is not satisfied - Under the circumstances, it cannot be said that the impugned order passed by the Tribunal upholding the order of Commissioner in not imposing any penalty u/s 11AC, suffers from any legal infirmity so as to give rise to any question of law, much less, a substantial question of law, warranting interference – Revenue appeal fails, hence dismissed: High Court [para 6, 7]

- Appeal dismissed: GUJARAT HIGH COURT

2019-TIOL-3462-CESTAT-HYD

JSW Cement Ltd Vs CCT

CX - The assessee-company manufactures Cement and sells it from the factory and also from its depots to its customers - In cases where the assessee suppliedthe goods to customers on FOR destination basis for delivery at the buyer's premises, it took Cenvat credit on the services of GTA in relation to transportation of goods from the factory and depots to the buyer's premises - An SCN was issued to the assessee to deny credit and recover the same with penalties - On adjudication, the cenvat credit was allowed and the demand raised was dropped partially - Such credit was disallowed on grounds that the documents furnished by the assessee pertain to clearances of final products from the factory to the buyer's premises - Hence the present appeal.

Held - The issue at hand is whether the appellant is entitled to Cenvat credit on GTA services and if so, whether the amount denied in the O-i-O has been correctly denied for the reasons mentioned - Undisputedly, the Cement was sold in this case on FOR destination basis for delivery at the buyer's premises by the supplier -The CCR 2004 permit availment of Cenvat credit on GTA services up to the place of removal - Thereby, the question is whether in such case, cenvat credit is admissible on outward transportation to the buyer's premises is admissible - It is seen that the adjudicating authority merits an opportunity to examine the present case in the light of the judgment of the Apex Court in Ultratech Cement Ltd and all the documents relied on by the assessee to assert eligibility to cenvat credit which was denied to them as the purchase orders clearly indicate that sale was on FOR buyer's premises basis and then decide entitlement to credit - Hence the O-i-O is set aside and the matter is remanded for passing fresh order: CESTAT

- Case remanded: HYDERABAD CESTAT

2019-TIOL-3461-CESTAT-KOL

Industrial Perforation India Pvt Ltd Vs CCE

CX - The assessee-company supplied Cable Tray with accessories, classifiable under Chapter 73 of the First Schedule to the CETA, to various thermal power projects - It then claimed exemption from payment of duty under Notfn No 6/2006-CE and Notfn No 12/2012-CE, as applicable in such period - As per these Notfns, all goods falling under any chapter supplied under International Competitive Bidding were exempted from levy of Excise duty, on the condition that the goods are exempted from Customs leviable under First Schedule to the CTA and from additional duty leviable u/s 3 of the CTA when imported into India - On adjudication, the Excise exemption was denied on grounds that the goods were not unconditionally exempted from Customs duty when imported into India as per the corresponding Customs Notfn No 21/2002-Cus and subsequent Notfn No 12/2012-Cus as amended - The Commr observed that the goods must be unconditionally exempted from duty when imported into India and that the goods manufactured by the assessee fell under Chapter 73089090 and were used as support for laying cables and so could not be treated as machines, spare parts or raw materials to be used in making such goods of chapter 84 - It was also observed that the exemption provided under Chapter 9801 is inapplicable to the goods - Hence the present appeal.

Held - In the instant case, as the goods were supplied for setting up Mega Power Projects, it is seen that the Commr. did not negate the submissions of the assessee regarding availability of exemption from Customs duty - Had the goods been imported from outside India, they would be eligible for exemption as projects import as available under Notfn No 21/2012-Cus - It is also seen that the entries in the Excise exemption notifications as availed by the assessee in Column No (2) for reference of chapter or heading specifically states "Any Chapter" which clearly implies that goods sought to be cleared by the assessee under these exemption entries may fall under any of the chapter headings of CETA with the only condition that they are supplied under International Competitive Bidding which is exempted from Customs duty - Hence the observation of the Commr. in denying the exemption is irrelevant as the goods falling under any of the chapter headings of CETA are exempted - The Commr. also noted that the goods must be unconditionally exempted under Notfn No 21/2002-Cus when imported into India - In this, the Commr. attempted to examine fulfilment of a condition which is not appearing in subject Excise exemption notifications - The only condition is that the goods are cleared under International Competitive Bidding for use in specified Mega Power Projects, which are exempted from Customs duty - This conditions is undisputedly satisfied in the assessee's case - Hence the assessee is eligible for exemption from payment of Central Excise duty: CESTAT

- Assessee's appeal allowed: KOLKATA CESTAT

2019-TIOL-3459-CESTAT-BANG

Dee And Em Naturals And Fragrances Vs CCE

CX - Appellants had filed two appeals E/968/2009 and E/969/2009 against OIA 41/2009 dated 31.07.2009 - Tribunal by its decision dated 23.12.2010 [ 2010-TIOL-1807-CESTAT-BANG ] considered the appeal E/968/2009 but the appeal E/969/2009 remained to be decided - It is apparent from the CESTAT order dated 23/12/2010 that the same was with respect to the duty on the goods lying in the factory and confiscated - Tribunal has held that provisions of Section 11 of the Central Excise Act cannot be invoked to demand duty on the successor prior to insertion of proviso in section 11 w.e.f 10.09.2004 and thus set aside the demand - since the present appeal is also against the same impugned order and which has been set aside by Tribunal, without any ROM having been filed, the impugned order becomes non Est - moreover, the Tribunal order has also been upheld by the High Court [2012-TIOL-433-HC-KAR-CX]  - Present appeal, therefore, gets consequentially merged with the earlier order passed by the Tribunal and is held to have been allowed earlier - no intervention is required by the Bench - as there is nothing left to be decided in the matter of appeal E/969/2009, the same is disposed of: CESTAT [para 3, 4]

- Appeal disposed of: BANGALORE CESTAT

2019-TIOL-3458-CESTAT-BANG

Bannari Amman Sugars Ltd Vs CCE

CX - Appellants are manufacturers of sugar - Molasses, denatured spirit, ethanol etc. emerge as by products; ethyl alcohol is manufactured by further fermentation and distillation from molasses which is captivity consumed in the distillery for the purpose - appellant claimed benefit of exemption notification 67/95-CE in respect of molasses captively consumed - no CENVAT credit was availed in respect of inputs used in manufacture of molasses - SCNs were issued seeking to deny the exemption notification 67/95-CE as well as rejecting of refund claims on the ground that break-up of consumption of molasses in excisable and non-excisable goods is not given - appeal to CESTAT.

Held: Issue is no longer res integra - Tribunal has passed a series of orders  in respect of the same issue and also in appellants case  [2018-TIOL-1359-CESTAT-BANG]  - Notification 67/95-CE is not available in respect of inputs used in the manufacture of final products which are exempted from whole of duty or are chargeable to ‘Nil' rate of duty - Such alcohol is not levied to Central Excise duty but are cleared on payment of State excise duty - as to whether alcohol for human consumption and which is not charged to CEX duty will fall under either of the two categories of ‘exempted from whole of duty' or ‘chargeable to Nil rate of duty' has been answered in favour of the appellant in the case of Manakpur Chini Mills Ltd. [2017-TIOL-2083-CESTAT-ALL] - following the same, impugned order is set aside and the appeal is allowed with consequential relief: CESTAT [para 4, 4.1]

- Appeal allowed: BANGALORE CESTAT

2019-TIOL-3451-CESTAT-KOL

Birla Tyres Vs CCE, C & ST

CX - By an adjudication order read with Corrigendum, the Commissioner has confirmed an excise duty demand against Birla Tyres under the Proviso to Section 11A(1) of CEA, 1944, along with interest under Section 11AB of the Act - The Commissioner has held that in respect of duty paid on some inputs on which cenvat credit was availed though the said inputs were used in the manufacture of Animal Driven Vehicle Tyres ("ADV tyres"), which was exempted from duty, the credit was not reversed - Penalty of an equivalent amount of the duty has also been imposed upon Birla Tyres under Section 11AC of the Act - A personal hearing was held by the then Adjudicating Authority when the Commissioner required Birla Tyres to submit the documentary evidences like; Cost Auditor's certificate showing the weight of ADV Tyres for the period covered by the impugned SCN, the resolution of Board of Directors of company appointing M/s S. Gupta & Company as Cost Auditor, Extracts from the Cost Auditor's reports for ADV Tyres and Documentary evidence in support of the reversal of cenvat credit of Rs. 1,55,867/-, which has not been factored into the SCN - In terms of the said direction Birla Tyres submitted all the documents, however, no order was passed by the then Commissioner and, as such, a fresh personal hearing was thereafter held by the incumbent Commissioner on 05.02.2008, pursuant to which the impugned order was passed - In the SCN, it is alleged that during the said period, Birla Tyres had used/consumed various inputs in or in relation to the manufacture of ADV tyres - The finding that the stock register and stock statements maintained by Birla Tyres established that the input materials alleged in SCN were used in or in relation to manufacture of ADV tyres during the said period, either directly or indirectly is also not supported by any material on record - The entire stock records, which also contain stock of inputs of other varieties of tyres, including radial tyres, by itself cannot justify such a conclusion - No steps were taken to verify the production process and to satisfy as to the input materials used in the manufacture of ADV tyres - Therefore, in the premises the Cost Audit report submitted by Birla Tyres in terms of the direction of predecessor Commissioner in the present proceedings, as well as the certificate of the Cost Auditor, submitted as per his direction in the proceedings are to be relied upon - They establish that the subject materials were never used as input materials, either directly or indirectly, in or in relation to the manufacture of ADV tyres - It is a settled principle of law that in the absence of sufficient, positive and tangible evidence on record, findings based on inferences as in impugned order are unsustainable in view of Oudh Sugar Mills - 2002-TIOL-307-SC-CX-CB - Further, as held by Supreme Court in Auto Ignition Ltd. - 2008-TIOL-121-SC-CUS, the burden of proof that assessee had availed modvat/cenvat credit is on the Revenue - Said principle fully applies to the instant case also - In the premises the demand of Rs. 17,67,273/- confirmed by impugned order also cannot be sustained - Hence, the demand of interest and imposition of penalty are also unsustainable: CESTAT

- Assessee's appeal allowed: KOLKATA CESTAT

CUSTOMS

2019-TIOL-2719-HC-AHM-CUS

CC Vs Nayara Energy Ltd

Cus - Revenue in appeal against order passed by CESTAT - Respondent is engaged in the manufacture and export of various petroleum products including Motor Spirit, LPG, SKO etc, falling under chapter headings 25 and 27 - The respondent exported Motor Spirit under shipping Bill dated 7.10.2013 and imported LSFO (Low Sulpur Fuel Oil) under Advance Authorisation - A show cause notice dated 8.12.2016 came to be issued to the respondent alleging that they had mis-declared that the exported product has been manufactured out of LSFO and has thereby violated the condition of Notification No. 31/(RE-2013)/2009-14 dated 1.8.2013 issued by DGFT read with para 4.1.15 of FTP, 2009-14 - It was alleged that the respondent had not used LSFO as an input in the export goods but has used VGO (Vacuum Gas Oil) generated during the refining of crude oil and had subsequently imported permissible input LSFO without payment of customs duty under Notification No.96/2009-Cus against the Advance Authorisations and had thus contravened the provisions of rule 14 of Foreign Trade (Regulation) Rules, 1993 - It was proposed to demand customs duty on goods imported by the respondent under Advance Authorisation under section 28(4) along with interest under section 28AA and penalties u/s 112(a)/114A/114(iii) of Customs Act - By an order-in-original, the Commissioner of Customs, Jamnagar, denied the exemption availed and confirmed the duty demand - Tribunal allowed the appeal filed by the respondent and set aside the order-in-original dated 20.2.2018, therefore, Revenue is before the High Court.

Held: Having regard to the fact that Sweet VGO used in the manufacture of motor spirit meets with the specification of LSFO as prescribed by BIS: 1593-1982, the question of breach of DGFT notification No. 31(RE-2013)/2009-14 dated 01.08.2013 whereby Para 4.1.15 came to be inserted in the Foreign Trade Policy providing that the inputs actually used in manufacture of the export product should only be imported under the Authorisation and similarly inputs actually imported must be used in the export product, does not arise - Court finds no infirmity in the approach adopted by the Tribunal in accepting the explanation put forth by the respondent, which has a duly scientific basis - From the facts noted, it is evident that the conclusions arrived at by the Tribunal are based upon findings of fact recorded after appreciating the material on record - In the absence of any perversity being pointed out in the findings of fact recorded by the Tribunal, no question of law, much less, a substantial question of law can be stated to arise out of the impugned order, warranting interference – Revenue appeal dismissed: High Court [para 20, 21, 22]

- Appeal dismissed: GUJARAT HIGH COURT

2019-TIOL-2718-HC-KAR-NDPS

Putta Venkateshwarulu Vs UoI

NDPS - Main ground urged on behalf of petitioner for seeking bail is that the seized material is not 'Ketamine' - The second allegation that Shivaraj was trained by petitioner is based on statement of co-accused and no other allegation is made by the prosecution against petitioner.

Held: Admittedly, as per the charge sheet, 17 samples were sent to Central Revenue Controlled Laboratory - The chemical analysis report has shown negative result for presence of 'Ketamine' - Thus, as on date, the seized material cannot be described as 'Ketamine' - Though a statement made before any Officer referred under Section 42 of the NDPS Act can be used by the prosecution against an accused, it is relevant to note that the allegation is with regard to training a co-accused in manufacturing drug - No other material is placed by the Prosecution to corroborate the statement of Shivaraj - Admittedly prosecution has already filed charge sheet and petitioner is in custody since 10th May 2019 – In the result, Petition is allowed; Petitioner shall be released on bail upon his executing a personal bond for Rs.5,00,000/- and two sureties for the like-sum to the satisfaction of the Additional City Civil and Sessions Judge and Special Judge for NDPS Act, Bengaluru: High Court [para 17, 19, 20]

Petition allowed: KARNATAKA HIGH COURT