Case Law Details
Avijeet Saluja Vs CGST (Patiala House Court)
Bail has been strongly opposed on behalf of the department submitting that not only accused availed fraudulent ITC on the basis of good less invoices Issued by fake Firms but also availed refund of ITC accumulated in the books on the strength of such fake invoices Also it was submitted that during interrogation accused was thoroughly evasive as he did not provide any detail of the firms person with whom he was purportedly dealing and as such remained uncooperative.
In the given facts accused and his wife are accused of serious allegations of creating fake firms for availing fraudulent ITC on the basis of good less invoices and also for seeking refund of ITC accumulated in the books on the strength of such fake, invoices causing huge loss of Rs 45 Crones approximate to the government exchequer Not only fake invoices were created for availing fraudulent ITC but refund also claimed of the ITC accumulated on the strength of such fake invoices. It is noteworthy that accused remained evasive throughout during questioning as he did not supply any information about other persons or firms with whom he was dealing or having connection with his scam The medical condition as pointed out during arguments do not make it a case of medical emergency as the paralysis and the brain stroke relates to 2007 – 2009 as such do not pose a present threat to the life of the applicant. Also the Jail authorities can very well cater to the medical needs of the applicant as adequate medical infrastructure / facilities are available in the prison
Considering the magnitude of the scam (the projected loss to the exchequer to the tune of Rs 45 Crores approx.) and the conduct of the accused, in the considered view of this court. release of the accused would certainly impede tree and fair investigation as to unravel the entire scam without any cooperation of the accused is not only time consuming but uphill task also.
Accordingly, bail is denied to the accused at this stage.
FULL TEXT OF THE JUDGMENT/ORDER OF PATIALA HOUSE COURT
The instant second bail application has been moved on behalf of applicant / accused Avijeet Saluja submitting that first bail application was preferred before Ld Duty MM on the date of arrest i.e. 10.12.2020 / 11.012 2020 while judicial remand of the accused was sought by the department. however bail application was rejected by the Ld Duty MM keeping in view of the urgent listing of the application bearing C.M No 32674/2020 in W P (C) No.10013/2020. 32630/2020 in W P iC) No. 10015/2020 and 32629(2020 in W.P (C) No. 10014/2020 before the Hon’ble High Court of Delhi. It is submitted that first bail application was not adjudicated on merits and Hon’ble High Court vide order 11 12.2020 granted liberty to the applicant to approach the appropriate forum. it is submitted that instant second bail application is maintainable in view of the liberty granted by Hon’ble High Court and the fact that first bail application was rejected without adjudicating it on merits and on account of subsequent development i.e. wife of the applicant has been granted interim bail by Ld District & Sessions Judge / PHC Also it is submitted that raids were conducted at the residential premises of the applicant alter his arrest however nothing incriminating was found and no statement of the applicant’ was recorded by the department during his custody
It is submitted that the medical condition of the accused is also not good as he suffered brain stroke in 2007 and underwent surgery thrice during 2007 to 2009 and he also suffered paralysis after his third surgery It is submitted that applicant has already given his statement to the department and also complied 11 summons as he appeared 10 times before the respondent. It is submitted that applicant satisfied the triple test as he is not a flight risk or can
tamper with the documents or influence the witnesses It is submitted that applicant is willing to reserve IGST amount along with MEIS and duty draw back aggregating to Rs. 1.1 Crores lying with the government exchequer on transactions carried out though shipping bill no. 648695. 6845117 and 6486996 in addition to frozen amount of Rs. 46 Lakhs which is with the respondentIt is submitted that applicant has no criminal antecedents and considering his medical conditions, conduct and aforesaid facts. he may be released on bail.
On behalf of department, it is submitted that applicant is the mastermind along with his wife Ms Luptia Saluja involving huge scam of tax evasion to the tune of Rs. 45 Crores approximate. It is submitted that during investigation, it has come out that M/s Sun Flame Trading Pvt Ltd , M/s Atlantic International Trading Pvt Ltd and Ms Blue Stare Pvt Ltd (where applicant’ and his wife are Directors) had taken illegally a refund of IGST (accumulating in their nooks only on the basis of receipt of paper invoices without receiving supply of goods) as the suppliers of these companies were found to be non existent. it is submitted that applicant and his wife created 05 bogus firms and availed ineligible ITC of Rs. 45 Crores approximate on the strength of fake invoices providing fabricated information on EWAY BILL PORTAL was availed and refund taken later Upon investigation, it was revealed that the companies did not receive goods from the supplier on whose invoices ITC has been claimed and on physical verification, none of the supplier was present in some case and physical addresses were found non existent. The transporter featuring in the e-way bills stated that they have not supplied the goods in respect of which ITC has been claimed Also the claim of the applicant that he made on-line payment to his suppliers was found to be fake as in many cases either the account did not exists or in some case the accounts were in the name of unauthorized people It is submitted that accused and his wife are well qualified and were active Directors of these companies
Bail has been strongly opposed on behalf of the department submitting that not only accused availed fraudulent ITC on the basis of good less invoices Issued by fake Firms but also availed refund of ITC accumulated in the books on the strength of such fake invoices Also it was submitted that during interrogation accused was thoroughly evasive as he did not provide any detail of the firms person with whom he was purportedly dealing and as such remained uncooperative.
Heard. Record and judgments perused
The law of bail dovetails on various facts and the golden principles laid down from time to time by the higher Courts. In Dipak Subhash Chandra Mehta Vs. CBI : (2012) 4 SCC 134 Hon’ble Apex Court held that ..Hrhe Court granting bail should exercise its discretion in a judicious manner and not as a matter of Course. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is need to indicate in such orders reasons for prima facie concluding whey bail was being granted. particularly, where the accused is charged of having committed serious offence.
The Court granting bail has to consider, among other circumstances, the factors such as.
a) The nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence:
b) reasonable apprehension of tampering with the evidence or apprehension of threat to the complainant.
c) Prima facie satisfaction of the court in support with the charge
In addition to the same, the court while considering a petition for grant of bail in a non bailable offence apart from the seriousness of the offence, likelihood of the accused fleeing from the justice and tampering with the prosecution witness, have to be noted
In the given facts accused and his wife are accused of serious allegations of creating fake firms for availing fraudulent ITC on the basis of good less invoices and also for seeking refund of ITC accumulated in the books on the strength of such fake, invoices causing huge loss of Rs 45 Crones approximate to the government exchequer Not only fake invoices were created for availing fraudulent ITC but refund also claimed of the ITC accumulated on the strength of such fake invoices. It is noteworthy that accused remained evasive throughout during questioning as he did not supply any information about other persons or firms with whom he was dealing or having connection with his scam The medical condition as pointed out during arguments do not make it a case of medical emergency as the paralysis and the brain stroke relates to 2007 – 2009 as such do not pose a present threat to the life of the applicant. Also the Jail authorities can very well cater to the medical needs of the applicant as adequate medical infrastructure / facilities are available in the prison
Considering the magnitude of the scam (the projected loss to the exchequer to the tune of Rs 45 Crores approx.) and the conduct of the accused, in the considered view of this court. release of the accused would certainly impede tree and fair investigation as to unravel the entire scam without any cooperation of the accused is not only time consuming but uphill task also.
Accordingly, bail is denied to the accused at this stage.
Copy of the order be transmitted to Ld Counsel for applicant through email/whatsapp
