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2023-TIOL-1140-HC-DEL-GST
Aman Gupta Vs State
GST - Applicant seeks anticipatory bail - FIR was registered on the complaint of one, Umang Garg wherein the complainant alleged that he had appointed the applicant, who was a CA, to look into books of accounts of his business - The applicant was looking after day-to-day business of the complainant and accounts related transactions for the last two years in respect of M/s Ulagarasan Impex Pvt Ltd, the company of the complainant - It has been alleged in the FIR that the applicant induced the complainant to purchase goods/material through different firms, which the applicant claimed to be of his known persons - The complainant started purchasing goods/materials, through Bills/E-way Bills from the said firms and the complainant was regularly making payments to the said firms - The applicant made the complainant deposit payments of the said goods in various accounts, existing in different names and was adjusting the payments against the said firms on his own - However, the complainant later got to know that the said firms are bogus and non-existent - Complainant has also alleged that the applicant and his associates have duped him of Rs. 2,81,99,475/- by creating fake, forged and fabricated firms and received payments including GST in different accounts against the purchased goods from the complainant, but have not deposited GST with the department - It is reported that the complainant was arrested by the DGGI on 5th April 2022 on the ground that various companies owned by him were involved in GST evasion by way of availing and passing fake Input Tax Credit (ITC) claims - Complainant was granted bail on 19 April 2022 after depositing Rs.1crore as tax - During investigation, it also came to light that an amount of Rs. 10,00,000/- was also transferred from the account of the complainant to the account of the applicant.
Held: Applicant has abused the process of the court - Having withdrawn his anticipatory bail application before this Court on 13th October, 2022 with a liberty to approach the Trial Court, the applicant did not file a fresh application for anticipatory bail before the Sessions Court, but preferred an application for surrender-cum-bail before the Sessions Court - Due to non-appearance of the applicant on the date fixed for consideration of the aforesaid application, the same was dismissed as not pressed - Thereafter, the present bail application was filed - Once the applicant had withdrawn his anticipatory bail application before this Court on 13th October, 2022, there was no occasion for the applicant to file a fresh bail application in a month's time - In the considered view of the Bench, the present case is not just relating to the applicant having duped the complainant of a huge sum of money, it also involves allegations of issuing fake invoices and e-way bills for the purposes of GST evasion, which is an economic offence involving loss to the public exchequer - Such offences need to be viewed seriously as the same pose a threat to the economy of the country - Further, the present case involves offence under Section 467 of the IPC read with Section 471 of the IPC, for which the maximum punishment is imprisonment for life - In the present case, for the aforesaid reasons, the custodial interrogation of the applicant is required - Allegations levelled against him are serious, being in the nature of forgery and GST evasion by creating false invoices issued by non-existent entities, no grounds for grant of anticipatory bail to the applicant are made out - Bail application dismissed: High Court [para 17, 18, 21, 24,]
- Application dismissed: DELHI HIGH COURT
2023-TIOL-1139-HC-DEL-GST
Green Polymers Vs UoI
GST - Petitioner has filed the present petition, inter alia, impugning the show cause notice dated 30.06.2023 proposing to cancel the petitioner's GST registration for the reason - “registration obtained by means of fraud, wilful misstatement or suppression of facts” - Petitioner also impugns the order dated 08.08.2023 cancelling the petitioner's GST registration with effect from 20.07.2022.
Held : It is apparent from the above that the impugned order cancelling the petitioner's GST registration is not informed by reason, does not provide any clue as to why the petitioner's GST registration has been cancelled - The impugned SCN does not indicate any specific reason(s) for proposing cancellation of the petitioner's GST registration - The impugned SCN is incapable of eliciting any meaningful response as it does not indicate as to what is the fraud allegedly perpetuated by the petitioner or the wilful misstatement allegedly made by the petitioner - It also does not indicate as to which material fact was suppressed by the petitioner - It is also not clear whether the petitioner's GST registration is proposed to be cancelled on account of fraud or wilful misstatement or suppression of facts as all the three reasons are indicated - Impugned SCN and order is set aside as it is not informed by reason - Petition is allowed: High Court [para 5, 9, 11]
- Petition allowed: DELHI HIGH COURT
2023-TIOL-1138-HC-CHHATTISGARH -GST
Mukesh Kumar Agrawal Vs State of Chhattisgarh
GST - Applicant seeks anticipatory bail - Case of the prosecution is that on 16.03.2023, one truck bearing registration No. CG-04-PB- 9810 carrying 700 bags of cement was intercepted by the Police Officials and upon inspection of the documents i.e., e-way bill and tax invoice, it was found that as per the documents, the goods were supposed to be delivered to Mahamaya Hardware, Kusmi, however the Truck driver was going to Dhanwar and on the basis of the same, it has been alleged that the accused is trying to evade payment of tax - Applicant submits that M/s. JK Lakshmi Cement Limited has raised tax invoice upon the firm of the applicant namely M/s. Maa Sharda Trading Company and was delivering the said goods to M/s Mahamaya Hardward, Kusmi, Balrampur, through the applicants firm and thus, the applicant is the owner of the goods in the truck; that being the C&F of M/s JK Lakshmi Cement Ltd, they have the authority to sell the cement anywhere in the State of CG.
Held: Considering the fact that it is not a case of prosecution that the forged documents have been prepared by the applicant with regard to GST or other invoices and also the fact that no material has been collected by the prosecution so far with regard to commission of offence under Sections 420, 467, 468, 471 read with Section 34 of I.P.C.,and also considering the fact that this may be a case of violation of GST Act, but from the material collected by the prosecution, prima facie , it is not established that the applicant committed the offence under Sections 420, 467, 468, 471 read with Section 34 of I.P.C, Bench is inclined to extend the benefit of Section 438 of the Cr.P.C. to the applicant - Bail application is allowed with a direction that in the event of arrest of the applicant, he shall be released on anticipatory bail on execution of personal bond of Rs.25000/- with one surety and abiding with the laid down conditions: High Court [para 8, 9]
- Application allowed: CHHATTISGARH HIGH COURT
2023-TIOL-1129-HC-MAD-CUS
Gaunir Impex Pvt Ltd Vs UoI
Cus - A show cause notice, dated 15.01.2009, was issued alleging that the DFRC license [purchased by petitioner] was actually issued for import of cotton processed fabrics of GSM 95+/-10%, but it has been used to avail the import duty benefit for the import dyed woven polyester fabrics - An order dated 30.07.2014 has been passed by second respondent - Respondents refused personal hearing as well as cross examination, hence the petitioner alleges that there is violation of principles of natural justice - Petitioner has circulated the list of persons which he wanted to cross examine, however, the respondents submitted that insofar as Sr no. 9 to 11 are concerned, the petitioner has mentioned designation but has not mentioned the name of the official, hence such request cannot be considered. Held: Court is of the view that such contention of the respondents cannot be entertained, since the official who was serving at that point of time is the appropriate person and the respondents are well aware of such persons rather than petitioner - Insofar as the contention raised by respondent that the petitioner is having an alternate remedy, Court is of the view that the writ petition is pending since 2014 and at this point of time, the petitioner cannot be directed to file appeal - Moreover, it is seen that penalty is imposed u/s 114A and which can be imposed based on suppression of facts, misstatement, collusion etc. - When an element of criminality is alleged, then the petitioner is entitled to personal hearing along with cross examination - Denying of cross examination is clear violation of principles of natural justice - Respondent authorities shall grant personal hearing as well as allow cross examination especially of the list of persons which the petitioner has mentioned in the list - Enquiry shall be completed within six months - Petition is allowed: High Court [para 8]
- Petition allowed: MADRAS HIGH COURT
2023-TIOL-1128-HC-AHM-CX
Bhagyalaxmi Prints Pvt Ltd Vs UoI
CX - According to the department, in the instant case, though grey fabric manufacturers were registered with the Central Excise, they were found to be fake, bogus and non-existent - In the investigation so conducted, according to the department, when it was found that the dealers were fake, the burden of proof that they existed, shifted on the person against whom the allegations were made and, therefore, in the opinion of the department, it was a clear case that the petitioner had fraudulently availed CENVAT credit - By the impugned order therefore the respondent no.4 confirmed the demand of CENVAT credit of Rs.15,40,481/- and also imposed a penalty - That order is under challenge before this Court - Counsel for respondent Revenue submitted that the petitioner has directly approached this Court challenging the order-in-original and there is an efficacious alternative remedy of filing an appeal against the order; that, therefore, the petition should not be entertained. Held: As in the case of the Prayagraj Dyeing & Printing Mills Pvt. Ltd. ( 2022-TIOL-1160-HC-AHM-GST ), merely because the manufacturers cannot be found at present, it cannot make the invoices fake or documents fraudulent in the eye of law - Enough material was placed on record by the petitioner to suggest that the invoices were issued by duly registered manufacturers and merely because the manufacturer is not available, does not mean that such manufacturer who was registered with the central excise did not exist - Once receipt of goods is not disputed by a person taking credit and necessary invoices are issued, the petitioner is entitled to take credit provided he took reasonable steps to ensure by the inputs or the capital goods in respect of which CENVAT credit is taken were accompanied by the documents - Facts of the case on hand were identical to the case of appeals before the Division Bench in case of Prayagraj Dyeing & Printing Mills Pvt. Ltd. ( 2022-TIOL-1160-HC-AHM-GST ) and, therefore, it was not open for the respondent authority not to give the benefit of such judgement - Petition is allowed by setting aside the order-in-original: High Court [para 5.6]
- Petition allowed: GUJARAT HIGH COURT
2023-TIOL-828-CESTAT-BANG
Fosroc Chemicals (India) Pvt Ltd Vs CCE & ST
CX - Appellants are manufacturers of construction chemicals and avail CENVAT credit - On detailed examination of the products and manufacturing process, the Commissioner found that the goods are classifiable under different chapter headings as against the classification claimed by appellant - Aggrieved by this order, the appellant is in appeal - Appellant submits that in respect of goods mentioned at Sr. no. 1 to 13, there is no change in the rate of duty and as such, no revenue implication, hence they accept the classification as proposed by Commissioner - Moreover, in respect of fourteen other products, they accept the classification opinion given by IIT Madras; that since these products are supplied in bulk and sold to industrial/institutional consumers in large quantities, MRP valuation is not applicable; that, therefore, their request for valuation u/s 4 be accepted rather than that as proposed by Revenue u/s 4A - Issue remains regarding classification of 27 other products. Held: Commissioner has decided the classification without getting the products tested and without considering the test reports placed by the appellant on record - Appellants in their written submissions dated 1.7.2013 have stated that Dr. R. Sundaravadivelu, FNAE, Professor of Department of Ocean Engineering, IIT Madras had certified regarding the characteristics of each product and there is also letter dated 28.6.2013 from Dr. R. Nagendra, Technical Director from Civil-Aid Technoclinic Pvt. Ltd. wherein technical opinion is given in some of the products - Therefore, we direct the adjudicating authority to consider all the test reports/technical opinions placed on record by the appellant along with the opinion given by IIT, Madras before concluding the classification of the above 27 products as listed at para 2.4 - Since the valuation under Section 4A of the Central Excise Act, 1944 depends on the classification of the products, the same may be considered after redetermining the classification based on the technical reports referred above - Matter remanded: CESTAT [para 4.3, 5, 6]
- Matter remanded: BANGALORE CESTAT |
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