GST UPDATE ON DEFAULT BAIL FOR NON-FURNISHING OF FINAL REPORT BY GST OFFICER

The provisions contained in section 132 of the CGST Act, 2017 pertains to punishment for certain offences and the sub-section (5) specifies that the offences under clause (a), or clause (b), or clause (c) or clause (d) of sub-section (1) and punishable under clause (i) of that sub-section are cognizable and non-bailable. Moreover, the provisions regarding power to arrest as contained in section 69 of the CGST Act, 2017 are subject to the provisions contained in the Code of Criminal Procedure, 1973. Consequently, we need to be aware of the provisions contained in the Code of Criminal Procedure, 1973 (Cr. P.C.) also. Recently, the benefit of default bail contained in section 167(2) of the Cr. P.C. was not granted to the petitioner by Hon’ble Chhattisgarh High Court in the case of PARITOSH KUMAR SINGH VS STATE OF CHHATISGARH. The outcome of this decision is the subject matter of the present GST update. The petitioners have filed this writ petition (criminal) under Article 226 of the Constitution of India challenging the legality and propriety of the order passed by 5th Additional Sessions Judge, Raipur by which he rejected the application for grant of default bail filed by the petitioner under Section 167 Cr. P. C.. Petitioners submitted that the petitioners have been arrested for alleged violation of Central Goods and Service Tax Act, 2017 for offence committed under Sections 132(1)(b) and (c) of the Act of 2017 and produced before the Judicial Magistrate, from where they were sent to judicial custody. Petitioners also submitted that the petitioners have been arrested and produced before the Magistrate concerned on 25.01.2021 from where they have been remanded in judicial custody and as per Section 132 (1)(b) and (c) of the Act of 2017 wherein maximum punishment is 5 years with fine. As per Section 167(2) Cr. P. C., respondent authorities are bound to file charge-sheet within 60 days and in this case charge-sheet has not been filed but a complaint has been filed on 25.03.2021. Complaint has been filed by the Senior Intelligence Officer. Petitioner contended that as per the provisions of Cr.P.C. it is responsibility of the respondent authority to submit charge sheet within 60 days, however, in the present case, no charge-sheet has been filed, therefore, the petitioners are entitled to be released on bail but the same has been denied by the Chief Judicial Magistrate. However, the hon’ble Chhattisgarh high court relied on the Supreme court decision of Badaku Joti Savant (supra) wherein it was held that Central Excise Officer cannot be treated as Police Officer so the Central Excise Officer can only file complaint as per Section 190 of the Cr. P.C. and cannot submit final report. The hon’ble High Court followed the decision of the Apex Court which held that Central Excise Officer has the same powers as conferred by police officer as under of the Evidence Act but the same does not includes power to submit a charge-sheet under section 173 of the Code of Criminal Procedure Act. Therefore, it was held that merely because the GST officer failed to submit the charge sheet/final report as required within a period of 60 days, the same cannot lead to granting benefit of default bail under section 167(2) of the Cr. P.C. It was held that filing of complaint within the period of 60 days by the GST officer is sufficient compliance as the GST officer is not required to exercise the duties of police officer. Hence, the application for grant of default bail under 167 of Cr. P.C. was rejected by the High Court. It is observed that often the benefit of doubt is being provided to the assessee for non-compliance of procedural requirements by the revenue authorities but the hon’ble High Court took a strict interpretation in the above-mentioned case for grant of bail as the GST evasion was on account of fake invoices involving revenue to the extent of Rs. 258 Crores.

Comments

GST UPDATE ON DEFAULT BAIL FOR NON-FURNISHING OF FINAL REPORT BY GST OFFICER

Post a Comment

Query