Directorate General of Goods & Services Tax Intelligence & Ors. Vs Rakesh Kumar Goyal (Patiala House Court)
As matter is kept today for order.
1. Ld. Senior Counsel for accused/applicant has prayed for grant of bail on the ground of parity with the co-accused. It is submitted that the applicant’s companies have paid the amount of duty to the supplier who actually deposited the same with the government as per the provisions under the GST laws. It is further submitted that after receipt of the goods with corresponding tax invoice, the applicant’s companies availed the credit (referred as input tax credit under the GST laws) of the GST paid on such supplies to its supplier, as per Section 16 of the CGST Act. It is further submitted that in case of imported goods, the applicant’s companies discharged tax obligation at the time of import as part of Customs duty levied under the Customs Act, 1962 read with Customs Tariff Act, 1975. It is also averred by Ld, senior counsel that accused joined the investigation as and when called by the department. It is further argued that Hon’ble Jharkhand High Court in the case of Nikit Mittal v. State of Jharkhand (2019) 76 GST 708 (Jharkhand), wherein upon an undertaking received from the accused to join investigation and offer to reverse the alleged fraudulently availed Input Tax Credit, the benefit of anticipatory bail was granted by the Court and accused here is ready and willing to reverse the blocked and un-utilized credit amounting to INR 2,55,18,717/- Crores. It is further submitted that the Learned ACMM has rejected the submission of the applicant that the law laid down by Division Bench of the Hon’ble Delhi High Court in the case of Makemytrip (India) Pvt. Ltd. 32 Vs. Union of India, reported as (2016) 44 STR 481 (Del.), is not applicable in the present case due to the law laid down by Hon’ble Telangana High Court in the matter of P.V. Ramana Reddy Vs. Union of India, reported as 2019-TIOL-873-HCTELANGANA-GST. It is submitted that the Makemytrip (India) Pvt. Ltd. Vs. Union of India reported as (2016) 44 STR 481 (Del.), the principle that the notice should be issued prior to arrest of person, this judgment was uphold by the Hon’ble Supreme Court in case of Union of India Vs. Makemytrip (India) Pvt. Ltd., reported as 2019 (22) G.S.T.L. J59 (S.C.) by way of specific order. The same has been dealt by the Hon’ble Punjab and Haryana High Court in the case of Akhil Krishan Maggu Vs. Dy. Dir., D.G. of GST Intelligence, reported as 2020 (32) GSTL 516 (P&H). It is further submitted that COFEPOSA matter is already over and accused has also won in other cases filed by the department. It is further contended by Ld. Counsel that in Make mytrip judgement, Makemytrip (India) Pvt. Ltd. 32 Vs. Union of India, reported as (2016) 44 STR 481 (Del.), it was held by Hon’ble High Court which was further upheld by the Hon’ble Supreme Court in case of Union of India Vs. Makemytrip (India) Pvt. Ltd., reported as 2019 (22) G.S.T.L. J59 (S.C.) that without assessment of tax and fixing the liability accused can not be arrested, moreover, an adjudication and prior notice is necessary before the arrest.
In support of his submissions, Ld. Counsel for DGGSI has placed reliance upon the following judgements:
