1/39Rane ABA-319-2020

18.8.2020

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

LD/VC/ABA NO. 319 OF 2020

1. Mr. Ashok Kumar s/o.

Shri. Chandrapal Singh

2. Mrs. Sheela w/o. Shri.

Ashok Singh ….Applicants

V/s.

Commissioner CGST &

Central Excise, Navi

Mumbai Commissionerate

And anr. …..Respondents

****

Mr. Ashok Saraogi, Advocate for the applicants.

Mr. Jitendra Mishra, Advocate for respondent no.1.

Ms. Anamika Malhotra, APP for State-respondent no.2

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CORAM : SANDEEP K. SHINDE, J.

DATE : TUESDAY, 18TH AUGUST, 2020.

P.C. :

1. Heard Counsel for the parties.

2. Perused file/notings produced by the

Commissioner of CGST (Central Excise) Navi

Mumbai, Commissioner-VIII.

3. Apprehending the arrest on accusation of

having committed a non-bailable offence in terms of

Section 132(1)(b) and (c) read with Section 132(5) of

the Central Goods and Services Tax Act, 2017 (“CGST

Act” for short), applicants are seeking directions under

Section 438 of the Criminal Procedure Code, that in

the event of their arrest they shall be released on bail.

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4. FACTS OF THE CASE :

(A) Applicants, who are partners of M/s. Sheela

Sales Corporation, a ‘registered person’, within the

meaning of Section 2(94) of the CGST Act is engaged

in the business of trading. Applicant no.1 is husband of

applicant no.2. Respondent no.1 is officer for the

purposes of the said Act. Applicant no.1 would claim

that applicant no.2 (his wife) being dormant partner,

does not participate in the business of the firm at all.

(B). It appears, Form –GSTR-3B, a summary

return of inward and outward supplies, filed by the

applicants’ firm revealed that the said firm had

availed, Input Tax Credit (ITC) of Rs.53.50 crores

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during the period July, 2017 to September, 2019 on

invoices valued at Rs.352.92 crores.

(C) It is the respondent’s case that, GSTR-3B

returns were filed belatedly, in as much as, GSTR-3B

for the months, July, 2017 to January, 2018 were filed

in October, 2018; GSTR –3B for the months March,

2018 to October, 2018 were filed in April, 2019; GSTR-

3B for the months November, 2018 to July, 2019 were

filed in November, 2019; and GSTR-3B for the months

of August, 2019 to November, 2019 were filed in

December, 2019.

(D). Upon noticing the gross irregularities

committed by M/s. Sheela Sales Corporation (“firm”

for short), Officer of the respondent no.1 initiated a

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preliminary enquiry wherein it was found that ITC of

Rs.63.50 crores was availed by applicant’s firm on the

basis of invoices said to be issued by M/s. Jai Bajrang

Traders, a firm located at Uttar Pradesh. Further,

investigation revealed that, M/s. Jai Bajrang Traders

is not a genuine firm and moreso, the applicants’ firm

had also failed to produce proof of movement of goods,

such as copies of e-way bills or any other proof of

receipt or storage of goods. The applicants had also

failed to furnish, proof of payment made to M/s. Jai

Bajrang Traders within 180 days. It is respondent’s

case that, as per the provisions of second proviso to

Section 16(2) of CGST Act, recipient has to make

payment to the supplier of goods within 180 days of

issue of invoice, and if he fails to make payment, then

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an amount equal to Input Tax Credit availed by the

recipient shall be added to the tax liability. It is

respondents’ case that, as per the provisions of Section

37(1) read with Rule 59 of CGST Act, every supplier

has to furnish details of outward supply of goods in

Form GSTR-I. On the basis of GSTR-1 filed by the

supplier, Form GSTR-2A is autopopulated at the end

of the recipient, wherein all details of inward supplies

are captured. During the course of preliminary

investigation, though efforts were made to generate

GSTR-2A of the applicant’s firm from GSTN Portal,

the same could not be generated.

(E) The investigation further revealed that, the

applicant’s firm after availing the ITC of Rs.53.50

crores without any actual receipt of goods has also

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passed on the said ITC of Rs.53.50 crores to six firms,

out of which five firms, namely M/s. Chandan

Enterprises, M/s. Sheela Sales Private Limited, M/s.

Chandan Sagar Sales Pvt. Ltd. M/s. Chandan Sagar

Constructions Pvt. Ltd and M/s. Structeco

Infrastructure Pvt. Ltd are closely held entities of M/s.

Sheela Sales Corporation, in as much as proprietor or

partner or a Director are common and are related to

each other. Investigation also revealed that, above

referred five firms have availed and passed on the said

credit of Rs.63.50 crores to 360 other firms located in

various parts of the country.

(F). The investigation, thus carried out

revealed that applicant’s firm, namely M/s. Sheela

Sales Corporation had not only availed fraudulent ITC

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of Rs.63.50 crores during the period July, 2017 to

September, 2019 without any actual receipt of goods

but also passed on the same to six firms out of which

five firms are closely held entities of their firm.

(G). During the course of investigation, seven

summonses were issued to applicant no.1 and four to

applicant no.2; however, applicant no.1 responded only

to two summonses dated 25th November, 2019 and 17th

January, 2020. Applicant no.2 did not respond to the

summons, at all.

(H). Shri. Avadh Bihari Baig who is Director

of M/s. Sheela Sales Pvt. Ltd. was also summoned for

recording the statement; however, he also did not

honour the summons dated 20th January, 2020.

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(I). It is respondents’ case that, applicant

no.1 in his statement dated 9th December, 2019 and 20th

January, 2020 admitted that none of his firms had

received goods from M/s. Bajrang Traders on which

invoices they have availed ITC of Rs.53.63 crores; and

that none of his firms has made payment to M/s. Jai

Bajrang Traders.

5. In essence, therefore the main allegation of the

respondents is that, applicants are guilty of circular trading

by claiming Input Tax Credit on the materials never

purchased and passing on such Input Tax Credit to

companies to whom they never sold any goods. It is

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therefore the contention of the respondent no.1, the

availment of ITC of Rs.63.53 crores without actual receipt

of goods in contravention of Section 132(1)(b) and (c) is a

cognizable and non-bailable offence under Section 132(5)

and punishable with imprisonment for a term which may

extend to five years and with a fine under Section 142(1)(i)

of the CGST Act.

6. As against this, it is applicants’ contention that,

(i) CGST Act, 2017 prescribes a procedure for

assessment even in cases where the information

furnished in the return sheet found to have

discrepancies and unless a summary

assessment/special audit is conducted for

determining the liability, no offence can be said

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to be made out under the Act. In other words,

prosecution cannot be launched without

assessment and therefore there is no question of

arrest.

(ii) That even otherwise, the applicants

have filed GSTR-3B, returns though belatedly

and therefore unless and until returns are

scrutinized and the liability is determined, a

prosecution cannot be launched.

(iii) That once returns are filed, at the

highest, the respondents while assessing, are

entitled to impose penalty.

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(iv) In absence of First Information Report

(FIR), respondents cannot arrest the

applicants.

(v) The issue as to whether arrest could be

caused, and applicability of Criminal Procedure

Code to the proceedings under the CGST Act is

pending before the Hon’ble Supreme Court and

in a matter of identical nature, Division Bench

of this Court has protected the petitioners

therein, by injuncting the respondents from

taking coercive steps. Reliance has been placed

on the order dated 31st July, 2019 passed in

Writ Petition No. 380 of 2019 (Asha Jain V/s.

Union of India).

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7. Mr. Saraogi, learned Counsel for the

applicants, also furnished written submissions on behalf of

the applicants on 5th August, 2020 and for the first time

contended that applicants are in possession of all relevant

invoices (running into 2000 pages) and transport bills

which the applicants are ready and willing to submit to the

respondent no.1 and therefore till these bills are verified,

applicants be granted protection from arrest.

. Second contention in the written submission (for

the first time) is that, the parties from whom the applicants

have purchased the material had from time to time

received OTP in respect of the transactions made and it is

only through OTP, the transactions were done.

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8. Before dealing with the contentions raised by

the applicants, it may be stated that, M/s. Jai Bajrang

Traders, have filed FIR against the applicants with police

at Gyanpur, Uttar Pradesh on 29th January, 2020 alleging

therein that the present applicants have taken charge of

their firm and forged the invoices in their favour. Though,

the applicants have admitted the fact of registration of

FIR, a copy of the FIR has not been produced, but it is

contended in the written submission that, the police after

investigation, found the allegation made by M/s. Jai

Bajrang Traders were false on the face of it. However, no

such report, exonerating the applicants has been filed. In

the circumstances, the fact remains that, FIR has been

lodged against the applicants by M/s. Jai Bajrang Traders

from whom goods worth Rs.350.92 crores were allegedly

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purchased by the present applicants’ firm. It is one

circumstance against the applicants, which requires

investigation.

9. After perusing the note sheets in the file and the

statement of applicant no.1 recorded in response to

summons issued under Section 70 of the CGST Act,

following facts emerge : (emphasis supplied)

(i) Applicants’ firm availed ITC of Rs.63.53

crores during the period July, 2017 to September,

2019 on invoices valued at Rs.352.92 crores.

(ii) M/s. Jai Bajrang Traders was sole

supplier.

(iii) GSTR-3B Returns were filed belatedly,

as detailed in paragraph-4(C) hereinabove.

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(iv ) In preliminary investigation,

invoices allegedly issued by M/s. Jai Bajrang

Traders were found not genuine as applicants had

failed to produce proof of movement of goods, copies

of e-way bills or any other proof of receipt/storage of

goods.

(v) M/s. Jai Bajrang Traders, Uttar

Pradesh had filed FIR against the applicants for

forging their bills and availing Input Tax Credit

without there being supply of goods.

(vi) That autopopulated Form GSTR -

2A could not be generated since the supplier i.e M/s.

Jai Bajrang Traders had not furnished details of

outward supply of goods in Form GSTR-I.

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(vii) Applicants were not in possession of tax

invoices or debit note issued by the so-called

suppliers registered under CGST Act and had not

received the goods while claiming input tax credit.

(viii) On verification from E-Way Bill Portal,

it is found that no e-way bill has been generated in

the name of M/s. Sheela Sales Corporation.

(ix) Applicant no.1 is proprietor, partner or

Director in five Companies namely, M/s. Sheela

Sales Corporation, Chandan Enterprises, M/s.

Sheela Sales Private Limited, M/s. Chandan Sagar

Sales Pvt. Ltd. and M/s. Chandan Sagar

Construction.

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(x) As per the GSTR-1 filed by M/s. Sheela

Sales Corporation, they have made supplies to their

closely held entities –

Sr.No. Invoiceissued by

Invoice issuedin the name of

Period Taxable value ITC

1. M/s. SheelaSalesCorporation

M/s. ChandanSagar SalesPvt. Ltd.

July, 2017to Sept,2019(exceptMarch2018 &July,2019)

123,05,29,327 22,04,22,265

2. ---do---- M/s. ChandanSagarConstruction

--do--- 27,04,76,183 4,92,19,348

3. ----do---- M/s. SheelaSales Pvt. Ltd.

28,31,24,036 5,09,62,232

4. ----do---- StructecoInfrastructurePvt. Ltd.

8,81,676 1,58,701

5. ---do--- Nitin KhimrajKanungo

1,11,59,850 20,08,773

6. ---do---- ChandanEnterprises

56,85,44,903 10,22,55,534

TOTAL 236,645,15,975 42.50,26,853

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(10). Thus from the facts emerging on perusal of

file notings and statements of applicant no.1 recorded in

response to summons issued under Section 70 of the CGST

Act, prima-facie suggest, applicants’

complicity/involvement in availing fake input tax credit

without movement of goods on forged invoices Rs.63.50

crores in breach of provisions of Section 16 of CGST Act,

which is cognizable offence under Section under Section

132(1)(b)(c) read with Section 132(5) of the CGST Act.

11. It may be stated that as per the provisions of

Rule 138 of CGST Act, 2017 (E-Way Rules) generation of

E-way bill is mandatory in case of inter-state supply of

goods from 1st April, 2018. Besides, as per the provisions of

sub-rule(4) of Rule 138 of Central Goods and Services Act,

2017 a unique E-way bill number (EBN) generated on the

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common portal is also made available to the supplier,

recipient and the transporter of goods. However,

applicants have failed to produce EBN particulars,

transporter’s details, proof of receipt of goods either by

himself or his agent or warehouse keeper and payment

proof either by himself or by agent or otherwise.

12. It may be stated that, the applicant no.1 in

his statement recorded on 9th December, 2019 and 20th

January, 2020 admitted, that neither his firm has received

goods from M/s. Jai Bajrang Traders nor, has made any

payment to M/s. Jai Bajrang Traders. In terms of Section

136 of the CGST Act, disclosure in the statement is

“relevant” for proving any offence under the said Act. It

may also be stated that, applicants have not retracted the

statements. Under these circumstances, contention of

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respondents that, fraudulent ITC claim of Rs.63.53 crores

is a matter of grave concern and requires thorough

investigation for which applicants’ presence is absolutely

necessary. This contention is well founded and deserves

consideration.

13. It appears, the applicants instead co-

operating with the ongoing investigation by submitting

relevant documents and making themselves available for

recording the statements, filed an anticipatory bail

application before the District and Sessions Court, Thane

and thereafter before this Court.

14. Let me now deal with the applicants’

contention that, unless returns GSTR-3B are verified and

liability is determined, prosecution cannot be lodged.

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Chapter-XIX of the CGST Act, spells out offences

committed by the registered person and penalties to be

imposed; whereas, Chapter-XII lists out, modes of

“assessments”. Section 2(11) of the Act, defines expression

“assessment” which reads as under :

“Assessment” means determination of tax

liability in this Act and includes self-assessment,

re-assessment, provisional assessment,

summary assessment and best judgment

assessment.”

. Upon reading the provisions contained in

Chapter-XIX, it may be stated that scheme of the Act,

does not make provisions of Section 122 to 138applicable,

subject to “assessment”. Both the Chapters, i.e. Chapter-

XIX and Chapter-XII are distinct and application of the

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provisions thereunder are distinct and not subject to each

other. If argument of applicants is accepted, it will turn

the provisions of the prosecution nugatory. Therefore, this

contention is also rejected.

15. Mr. Saraogi’s next contention is that,

registration of FIR is a condition precedent for arresting

the person, also deserves no consideration.

. Section 69 of the CGST Act empowers

Commissioner to order and authorize to arrest a person if

he has “reason to believe” that 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. Herein, facts emerged from

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file notings do suggest that Commissioner has had, reason

to believe, the applicant’s complicity in committing the

offence under Clause (b) and (c) of sub-section (1) of

Section 132 of the CGST Act. I have culled out the facts

emerging from the notings hereinabove.

16. Mr. Saraogi’s next contention is, that a

person facing similar charges has been protected by the

Division Bench of this Court in the case of Sapna Jain V/s.

Union of India in Writ Petition No. 1996 of 2019 and other

connected petitions, vide order dated 8th July, 2019 and

therefore the applicants also be protected.

. I have perused the order dated 8th July, 2019. It

appears, in Sapna Jain’s (supra) case on 11th April, 2019

Division Bench of this Court had issued notices to the

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respondents and directed not to take coercive action

against the petitioner till the next date of hearing.

Accordingly, petitions were adjourned. On 8th July, 2019,

the respondent-Union of India opposed the continuation of

the ad-interim relief relying on the order of the Hon’ble

Apex Court dated 29th May, 2019 passed in Special Leave

Appeal (Cri) No. 4322-4324/2019. It reads as under :

“. SLP (Crl.) Nos. 4322-4324/2019, Diary No.

15477/2019 and SLP (Crl.) No. 4546/2019

. Delay condoned.

. Issue notice returnable in four weeks.

. As different High Courts of the country

have taken divergent views in the matter, we are

of the view that the position in law should be

clarified by this Court. Hence, the notice.

. As the accused-respondents have been

granted the privilege of pre-arrest bail by the High

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Court by the impugned orders, at this stage, we

are not inclined to interfere with the same.

However, we make it clear that the High Courts

while entertaining such request in future, will

keep in mind that this Court by order dated

27.5.2019 passed in SLP (Crl.) No. 4438/2019

had dismissed the special leave petition filed

against the judgment and order of the Telangana

High Court in a similar matter, wherein the High

Court of Telangana had taken a view contrary to

what has been held by the High Court in the

present case.”

. Beyond the above, we do not consider it

necessary to observe anything further.

. The present matters alongwith other

connected matters (SLP (Cri.) No.244/2019,

W.P.(Crl.) No. 118/2019, T.C. (Crl.) No.

3/2018, T.C. (Crl.) No.4/2018, SLP (Crl.) No.

4634/2014, SLP (Crl.) No. 993/2016, W.P.

(Crl.) No.389/2018, W.P. (Crl.) No. 333/2018

and W.P. (Crl.) No.34/2019) be listed before a

Bench of three judges.

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SLP (Crl.) No. 4571/2019

. Having heard learned counsel for the

petitioner and upon perusing the relevant

material, we are not inclined to interfere. The

special leave petition is accordingly dismissed.

. Pending interlocutory applications, if

any, shall stand disposed of.”

. In view of this order of the Hon’ble Apex Court,

contention of Mr. Saraogi, seeking parity is rejected.

17. It may be stated that, for the first time,

applicants in their written submissions filed before this

Court on 5th August, 2020 submitted that they are in

possession of all the relevant documents in support of

ITC claim and they are ready and willing to submit the

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same to the Officer of respondent no.1. Another

contention raised for the first time is that, applicants

had purchased material only after receiving the

required OTP of transaction.

. These two submissions are prima-facie

afterthought, in as much as, respondents had been

afforded sufficient opportunities by issuing seven

summons to applicant no.1 and four to applicant no.2;

however, they did not produce any document to

substantiate, that at the time of claiming Input Tax

Credit, they were in possession of invoice and/or there

was movement of goods from the supplier to the

applicant’s firm or to their assignees. Infact, applicant

no.1 in his statements dated 9th December, 2019 and

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20th January, 2019 recorded in response to summons has

admitted, thus :

“M/s. Sheela Sales Corporation does not

receive material from M/s. Jai Bajrang

Traders, a supplier located in UP. Neither

any e-way bill is generated by M/s. Jai

Bajrang Traders in the name of M/s. Sheela

Sales Corporation. M/s. Jai Bajrang Traders

only issued invoice in the name of M/s. Sheela

Sales Corporation.”

This admission/statement has not been retracted by

the applicant till date. Moreover, applicants did not

produce invoice and transport receipts. On the

backdrop of these facts, invoice and transport bills

produced at the eleventh hour, is nothing but an

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attempt to prolong the proceedings, so that interim pre-

arrest protection granted by this Court would continue

to operate till the bills are verified.

. It is to be noted that, applicants in their

written submissions did not explain why applicants

could not produce invoices and other documents before

the respondent-Officer and further when such invoices

came in their possession. Applicants ought to have

been explained and furnish the explanation in view of

the fact that, M/s. Jai Bajrang Traders, the sole

supplier has lodged FIR against the applicants for

forging the invoices.

. Be that as it may, when respondents were

confronted with these invoices and transport receipts,

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learned Counsel for the respondent would submit that

invoices and transport bills were submitted to the office

of the respondents recently. He would submit, some of

the invoices and transport bills were verified by the

Officer which revealed that, many of the vehicle

numbers are bogus and further also found that vehicle’s

registration date is latter then the lorry receipt dates.

A note submitted by the Counsel for the respondent, is

reproduced hereinbelow :

“The documents submitted before the Hon’ble

Court by the applicant’s advocate alongwith the

written submission dated 05.08.2020 are as

below:

1. Invoices issued by M/s. Jay Bajrang

Traders (in respect of which M/s. Jay Bajrang

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Traders has filed a police complaint that the

applicants have taken charge in respect of their

(M/s. Jay Bajrang Traders) and have created

necessary bills in their (applicant’s firm)

favour.

2. Lorry receipts – verification of which

revealed that many of the Vehicle Nos. are

bogus. In many cases, it is found that the

vehicle registration date is later than the Lorry

receipts date. Details of five such Lorry

receipts are given below for example –

Sr.

No.

L.R.

No.

LR date Vehicle

Registration

No.

Vehicle

Registratio

n date

Page No.of

submission

dated

05.08.20201 62 13.07.2017 UP55T8462 23.08.2018 582. 92 14.11.2017 MP17HH5511 15.01.2019 823. 99 05.12.2017 UP62BT1152 14.08.2018 914 30 12.10.2017 UP53ET3837 26.12.2017 945 89 11.11.2017 UP42BT7266 16.02.2018 98

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III. Bank account statements of M/s.

Chandan Enterprises M/s. Sheela Sales Pvt. Ltd.

And M/s. Sheela Sales Corporation – a perusal of

the same reveals that no payment has been made

to M/s. Jay Bajrang Traders.

IV. GSTR-2A- which have been generated

after initiation of investigation as the GSTR-1

were filed in November, 2019 and thereafter.

V. Form 3GB for F.Y. 2017-18 and 2019-

20 which has been prepared on 24.12.2019 and

30.10.2019 respectively i.e. after initiation of

investigation. Further, the Chartered Accountant

has observed that ‘the books of accounts have not

been produced for verification. Audit has been

carried out on the basis of information and

documents before us.” Thus, the authenticity of

the said Form 3GB is itself in doubt as the same

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has been prepared without production of books of

account. Copies of Form 3GB is annexed

herewith.”

18. Thus taking into consideration, the

facts of the case, though the officers under the CGST

Act, cannot seek custody of the arrested persons for

completing the investigation, respondent’s contention

that applicant’s detention in custody is necessary to

prevent him from causing the evidence of the offence to

disappear or tampering such evidence is well founded.

Counsel for the respondent has correctly placed reliance

on Section 41 of the Criminal Procedure Code in

support of his argument and also relied on the Clause-

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(VI) of notings dated 20th January, 2020 which suggest

involvement of such two other persons.

19. In view of the facts of the case and in the

larger interest of the public and the State, in serious

cases like this, I am not inclined to exercise discretion

under Section 439 of the Criminal Procedure Code in

favour of applicant no.1. It is rejected.

20. So far as applicant no.2 is concerned,

material on record indicates and suggest that, applicant

no.2 is wife of applicant no.1 and is a dormant and

sleeping partner and she is not participating in the day-

to-day business of the firm. Applicant no.2 is a

housewife. Having regard to these facts, in my view,

custody of the applicants will not further the

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case/investigation of the respondent and therefore pre-

arrest bail is granted to the applicant no.2 and pre-

arrest bail application of applicant no.1 is rejected.

Hence, the following order is passed :

O R D E R

(i) Pre-arrest bail of applicant no.1 is rejected.

(ii) Pre-arrest bail of applicant no.2 is granted,

subject to conditions viz. that in the event of her

arrest, she shall be released on bail on furnishing bond

in the sum of Rs.50,000/- with one or more sureties in

the like amount.

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(iii) In view of the prevailing Pandemic Covid-19,

applicant no.2 is directed to be released on cash bail of

equivalent amount.

(iv) The applicant no.2 shall furnish particulars of her

residence and contact details to the Officer of respondent

no.1 within seven days from the date of this order.

(v) Applicant no.2 shall respond to the

notices/summons issued by respondent no.1 by attending

to the office of respondent no.1.

(vi) Applicant no.2 shall not tamper with the evidence or

attempt to influence or contact the complainant, witnesses

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or any person concerned with the case.

(vii) Applicant no.2 shall attend concerned police

station as and when called and co-operate in the

investigation.

21. At this stage, learned Counsel for the applicant

prays that the interim relief granted to the applicant no.1

may be continued for a period of 8 weeks. Having regard to

the facts of the case, I am not inclined to continue the

interim relief. The prayer is rejected.

22. It is made clear that observations made

hereinabove be construed as expression of opinion only for

39/39Rane ABA-319-2020

18.8.2020

the purpose of granting bail and the same shall not in any

way influence the trial in other proceedings.

(SANDEEP K. SHINDE, J.)