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April 14, 2021

Right of `default bail’ accrued to the applicant after completion of 60 days in case charge sheet has not been filed within 60 days

by Mahesh Mara in GST

Right of default bail accrued to the applicant after completion of 60 days in case charge sheet has not been filed within 60 days

What is Section 132(1) of the CGST act?

Punishment related to certain offence under GST is covered under section 132(1). Section 132(1) states that Whoever commits any of the following offences:

(a) supplies any goods or services or both without issue of any invoice, in violation of the provisions of this Act or the rules made thereunder, with the intention to evade tax;

(b) issues any invoice or bill without supply of goods or services or both in violation of the provisions of this Act, or the rules made thereunder leading to wrongful availment or utilisation of input tax credit or refund of tax;

(c) avails input tax credit using such invoice or bill referred to in clause (b);

(d) collects any amount as tax but fails to pay the same to the Government beyond a period of three months from the date on which such payment becomes due;

(e) evades tax, fraudulently avails input tax credit or fraudulently obtains refund and where such offence is not covered under clauses (a) to (d);

shall be punishable–

(i) in cases where the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or the amount of refund wrongly taken exceeds five hundred lakh rupees, with imprisonment for a term which may extend to five years and with fine;

(ii) in cases where the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or the amount of refund wrongly taken exceeds two hundred lakh rupees but does not exceed five hundred lakh rupees, with imprisonment for a term which may extend to three years and with fine;

(iii) in the case of any other offence where the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or the amount of refund wrongly taken exceeds one hundred lakh rupees but does not exceed two hundred lakh rupees, with imprisonment for a term which may extend to one year and with fine;

(iv) in cases where he commits or abets the commission of an offence specified in clause (f) or clause (g) or clause (j), he shall be punishable with imprisonment for a term which may extend to six months or with fine or with both.

(2) Where any person convicted of an offence under this section is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to five years and with fine.

Fact and Issue of the case

The applicant has filed this second application for grant of bail, who has been arrested and is in custody since 6.2.2019, in connection with a Case registered at Police Station Commissioner, Central Goods and Service Tax Department, Gwalior M.P for the offence punishable under section 132. His first application for bail was dismissed as withdrawn by the court. It is the submission of learned counsel for the applicant that on the basis of false case, applicant is in confinement since 6.2.2019. Respondent authorities summoned the applicant on 5.2.2019 and when he appeared before them, they took him in custody and since then, he is in custody.

As per Section 69 of the CGST Act, without authorization, no arrest can be made and in absence of such authorization, it is illegal detention. Ingredients of Section 132 of the Act of 2017 are not available in the present case. Tax liability has not been adjudicated by the respondent under the Act by issuing show cause notice and quantifying the evasion of duties. It was further submitted on behalf of the applicant that applicant was arrested on 6.2.2019 and charge sheet has not been filed within 60 days. Offence under Section 132 of the Act is punishable with maximum jail sentence of five years, therefore, charge sheet ought to have been filed within 60 days but omission to file charge sheet within 60 days, applicant gets indefeasible right to be released on bail.

Observation of the court

The court observed that this is a case where the applicant is facing heat of investigation under section 132 of the Act. Section 132 of the Act prescribes punishment for certain offenses and the maximum sentence which can be awarded, is five years. Section 167 (2) of the Cr.P.C provides 60 days time to the investigating agency to submit charge sheet for the offences where investigation relates to any offence other than total imprisonment for life or imprisonment for a term of not less than 10 years. Here the maximum sentence punishable is imprisonment for five years therefore, the respondent had to file the charge sheet within 60 days.

But admittedly, charge sheet has not been filed, therefore, the right of `default bail’ accrued to the applicant after completion of 60 days. It was the duty of the investigating agency to submit a charge sheet within the stipulated period, but same has not happened. Considering the overall fact situation and legal position, the right has been accrued to the applicant. But looking to the nature of allegations, bail can only be granted to the applicant with certain stringent conditions. The applicant was directed to be released on bail on furnishing a personal bond in the sum of Rs. 5,00,000/- with two solvent sureties of the like amount to the satisfaction of the concerned trial Court.

Conclusion

The court held that without expressing any opinion on merits of the case, this application is allowed and it is directed that the applicant be released on bail on furnishing a personal bond in the sum of Rs. 5,00,000/- (Rs. Five lac only) with two solvent sureties of the like amount to the satisfaction of the concerned trial Court.

Read the full court order from below Link

Right-of-default-bail-accrued-to-the-applicant-after-completion-of-60-days-in-case-charge-sheet-has-not-been-filed-within-60-days

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