Page 25 - GSTL_13th August 2020_Vol 39_Part 2

2020 ] PROSECUTION UNDER INDIRECT TAX LAWS IN INDIA J33
amount as Service Tax but fails to pay the amount so collected to the credit of the
Central Government beyond the period of six months from the date on which
such payment becomes due and the amount exceeds ` two crores.
It is pertinent to note here that C.B.E. & C. vide Circular No.
201/11/2016-S.T., dated 30th September, 2016 [2016 (44) S.T.R. C19] have issued
guidelines which are as follows. Once the legal ingredients of the offence are
made out, the Commissioner must then determine if answer to the following
questions is in the affirmative.
(A) Is the alleged offender likely to tamper the course of for the investi-
gation by his unrestricted movement?
(B) Is the alleged offender likely to tamper with evidence or intimidate
or influence witnesses?
(C) If the answers to both the questions is yes, then the decision to ar-
rest can be made.
Prosecution under GST, i.e., Central Goods and Services Tax Act, 2017 :
Section 132 of CGST Act, 2017 states offences wherein arrest can be made
and prosecution can be launched. These offences are as follows.
(I) Supply of goods or services or both without issue of an invoice with
the intention to evade tax.
(II) Issue of any invoice or bill without supply of goods or providing
services.
(III) Availing of Input Tax Credit using such invoice or bill referred to
above.
(IV) Collection of any amount as tax but failing to pay the same to the
Government beyond a period of three months from the date on
which such payment becomes due.
It is pertinent to note here that there is only specific provision provided in the
CGST Act, 2017 under Section 69 of the said Act, for arrest of the person however
no provision for investigation or trial of an offence under Section 132 of the CGST
Act is provided in the Act. Therefore, as per provisions of Section 4(2) of Cr.P.C.
after arrest under Section 69(1) of CGST Act further procedures will be governed
by the provisions of Cr.P.C.
Disposal of person after arrest :
Statutes such as Central Excise Act, 1944, Customs Act, 1962, Finance
Act, 1994 (Service Tax) and GST, i.e., Goods and Services Tax Act, 2017 are spe-
cial laws. As per Lex Specialis doctrine the provisions of above said special stat-
utes will prevail over the provisions of Code of Criminal Procedure. However,
after arrest is made the further disposal of arrested person will be as per the pro-
visions of Cr.P.C. since in none of the above said statutes the procedure regard-
ing the disposal of the person after the arrest is mentioned. Therefore, after pro-
duction of the arrested person before magistrate the magistrate under power
vested in Section 437(1) may release him on bail. If magistrate refuses to grant
bail then he can only remand the accused to judicial custody since the officers
functioning under the special statutes do not have lock-ups and are not in a posi-
tion to keep such accused persons in their custody.

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